JUDGMENT

Aggrieved by the judgment dated 01.07.2008, passed by the Additional Sessions Court, Fast Track (Adhoc -II), Kozhikode, in Sessions Case No.53/2005 the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of 1 year and pay a fine of Rs.1 Lakh.

2. The prosecution case is that on 21.12.2002, at

2.10 pm, the appellant/accused was found in possession of 5 litres of arrack on the Vellimadukunnu- Puliyamkodekunnu road at Chelvaur, Kozhikode Taluk, in violation of the provisions of the Abkari Act.

3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) 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 him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore he came to be tried by the trial Court for the aforesaid offence.

4. The prosecution examined PWs. 1 to 4 and proved Exts. P1 to P6 and MO1.

5. After the closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder.

6. Heard Sri. T.G. Rajendran, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent.

7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the sample drawn at the place of occurrence eventually reached the hands of Chemical Examiner. The learned counsel relied on the following circumstances to substantiate his contention.

(i) The prosecution has not offered any explanation as to the delay in bringing the sample to the laboratory after obtaining it from the Court.

(ii) The officials who handled the sample after the same was produced before the Court were not examined as witnesses to rule out the possibility of the sample being changed or tampered with.

8. The alleged seizure was on 21.12.2002. The seizure was effected by the Preventive Officer, Excise Enforcement and Anti Narcotic Special Squad, Kozhikode (PW1). He has given evidence that the accused along with the contraband substance was produced before the Excise Range Inspector, Kozhikode. The date on which the bottle containing the sample and other properties were produced before the Court is not evident as the prosecution has not produced the property list. The bottle containing the sample remained in the custody of the Property Clerk of the Court till the same was forwarded to the laboratory. Ext.P5 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 27.12.2002 of the Judicial First Class Magistrate – I, Kozhikode. The sample reached the laboratory on 20.01.2003. Ext.P5 shows that the sample was delivered in the laboratory by Shri. Abdul Azeez, an Excise Guard. The Property Clerk of the Court and the Excise Guard who delivered the sample to the laboratory were not examined as witnesses. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. The necessary inference from Ext.P5 is that the sample was forwarded to the laboratory on 27.12.2002. The custody of the sample during the interregnum, that is, from 27.12.2002 to 20.01.2003, has not been satisfactor