The essential link between seizure and analysis of contraband must be proven, or the conviction cannot stand.

JUDGMENT

Aggrieved by the judgment dated 19.04.2008, passed by the Additional Sessions Court, Fast Track Court - III, Palakkad in Sessions Case No.472/2003, accused No.1 has preferred this appeal. The appellant/accused No.1 was convicted under Section 55 (a) of the Abkari Act and sentenced to undergo simple imprisonment for a term of three years and pay a fine of Rs.1 Lakh.

2. The prosecution case is that on 26.05.2003 at 9.45 a.m, the appellant and the other accused were found transporting 10 litres of illicit arrack in an autorickshaw bearing registration No.KL.9/H-5209 in front of Thrithala Police Station in violation of the provisions of the Abkari Act .

3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55 (a), 8(2) and 55(i) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused, charge was framed against them for the offence punishable under Section 55 (a) of the . The accused pleaded not guilty to the charge and therefore, they came to be tried by the trial Court for the aforesaid offence.

4. The prosecution examined PWs 1 to 7 and proved Exts.

P1 to P9 and MOs 1 to 2.

5. After the closure of the evidence on behalf of the prosecution, statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found accused No.1 guilty of the offence punishable under Section 55 (a) of the Abkari Act and convicted him thereunder. Accused No.2 was acquitted.

6. Heard Sri. E.R.Venkiteswaran, the learned counsel appearing for the appellant and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent.

7. The judgment of conviction and sentence is challenged on the ground that the prosecution failed to establish that the arrack allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory.

8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:

(a) The prosecution failed to explain the delay in the production of the sample before the Court after the alleged seizure.

(b) The prosecution failed to establish the tamper-proof despatch of the sample from the Court to the laboratory.

9. The alleged seizure was effected by SI of Police, Thrithala, [PW7] on 26.05.2003. According to the prosecution, PW7 seized 10 litres of arrack from the possession of the accused at 9.45 a.m.. He had drawn the sample at the scene of occurrence which is evident from Ext.P1 seizure mahazar. The appellant and the other accused were arrested from the scene of occurrence and produced before the Court on 26.05.2003 itself. The detecting officer failed to produce the properties including the sample on 26.05.2003. Ext.P8 property list would show that the sample reached the Court only on 28.05.2003.

10. In Ravi v. State of Kerala [ 2011 (3) KHC 121 ], on the question of delay in the production of properties, a Division Bench of this Court held as follows:

“8. We, therefore, answer the reference as follows:

1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed prod