JUDGMENT

The appellant is the 1st accused in Sessions Case No.

478/2002 on the file of the Addl.Sessions Judge, (Adhoc-2), Ernakulam. This is a case chargesheeted against the appellant and another alleging offence punishable under Secs. 8(1) r/w

8(2) of the Abkari Act.

2. The prosecution case is that on 18.4.2003 at about

11.10 pm, the accused was found transporting illicit arrack in a 10 ltr. Plastic can in an autorikshaw bearing registration No.KL-7 U/4781 driven by the 2nd accused in violation of the provisions of the Abkari Act at Oonnukal. The accused are therefore alleged to have committed the offence.

3. To substantiate the case, the prosecution examined PW1 to PW4. Exts.P1 to P12 are the exhibits. MO1 is the material object marked on the side of the prosecution. No defence evidence was adduced by the prosecution. After going through the evidence and the documents, the trial court found that the 1st accused is guilty under Secs.8(1) r/w 8(2) of the Abkari Act. The 2nd accused was acquitted. The 1st accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only) and in default to pay the fine, he is directed to undergo simple imprisonment for a further period of six months under Secs.8(1) r/w 8(2) of the Abkari Act. It is also ordered that the accused is entitled set off for the period of detention from 18.4.2003 to 3.5.2003. Aggrieved by the conviction and sentence, this appeal is filed.

4. Heard the learned counsel for the appellant and the learned Public Prosecutor.

5. The counsel for the appellant submitted that even if the entire allegations are accepted, the prosecution is not able to prove the case. The counsel submitted that the vehicle was driven by the 2nd accused and it is the case of the prosecution that when the police party came, both accused tried to ran away. The 2nd accused was already acquitted by the trial court. The counsel submitted that there is no other evidence to connect the accused with the contraband articles. The counsel also submitted that the prosecution miserably failed to prove that the seized articles reached in the hands of the Analyst. Therefore, the accused is entitled the benefit of doubt. The learned Public Prosecutor submitted that there is nothing to interfere with the conviction and sentence imposed on the appellant. The Public Prosecutor submitted that the oral evidence coupled with the documentary evidence will prove the offence and the appellant is guilty under Sec.8(1) of the Abkari Act. The Public Prosecutor takes me through the evidence available in this case along with the documents.

6. This Court considered the contentions of the appellant and the Prosecutor. The point for consideration in this appeal is whether the appellant committed the offence under Secs.8(1) and (2) of the Abkari Act based on the oral evidence of PW1 to PW4 coupled with the documentary evidence of Exts.P1 to P12.

7. This Court perused the evidence and documents available in this case. The prosecution case is that on 18.4.2003, the contraband was seized from an autorickshaw.

Ext.P3 is the seizure mahazar. Ext.P9 is the property list. As per the property list, the properties were reached the Court on 19.4.2003. Thereafter, the sample was forwarded for chemical analysis based on Ext.P10 forwarding note. Ext.P12 is the analyst report. I perused Ext.P10 forwarding note. A perusal of Exts.P10 and P12 will show that the sample was sent to the Analyst through one Police Constable No.7116. The Police Constable, who took the sample to the Analyst is not examined in this case. It is a settled position that the prosecution should prove all the links starting from seizure of the contraband till it reaches in the hands of the Analyst. PW1 is the alleged independent witness who attested the mahazar. He was turned hostile. The seizure mahazar in which PW1 was alleged to be signed was not even put to the witness by the prosecution. PW2 is the Police Con