JUDGMENT

The appellant is the accused in S.C. No.809/2006 on the file of Additional Sessions Court (Adhoc-III), Kollam. The aforesaid case arises from Crime No.44/2004 of Sasthamkotta Excise Range office which was registered for the offences punishable under Section 8(2) of Abkari Act.

2. The prosecution case is that, on 20.04.2004 at about

6.30 p.m. the accused was found carrying 5 litres of arrack in a white plastic can along the road leading from Plamukku to Kaleekkalethu Mukku. The crime was registered on the basis of the same. The appellant was arrested from the spot and the articles were seized. On the basis of the same, Excise Inspector, Kunnathoor registered the case and after completing the investigation thereof, final report was submitted before the Judicial First Class Magistrate Court, Sasthamcotta where it was taken into file as C.P. No.130/2005. After completing the legal formalities, the matter was committed to the Sessions Court, Kollam. Later the same was made over to Additional Sessions Court, Adhoc III, Kollam where it was tried as S.C. No.809/2006.

3. In support of the prosecution case, PWs 1 to 6 were examined. Exts.P1 to P9 were marked and MO1 was identified. After completion of prosecution evidence the appellant was examined under Section 313 Cr.P.C. and incriminating materials were put to him. He denied the same. No defence evidence was adduced. After examining the materials available on record, the Sessions Court arrived at the finding that accused is guilty for the offence punishable under Section 8(2) of Abkari Act and accordingly he was sentenced to undergo rigorous imprisonment for one year and fine of Rs.1 lakh with a default sentence to undergo simple imprisonment for three months. This appeal is filed being aggrieved by the aforesaid conviction and sentence.

4. Heard Sri.S.Santhosh Kumar, learned counsel appearing for the appellant and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor.

5. The learned counsel for the appellant would contend that the prosecution failed to establish the guilt of the accused. It was pointed out that, the prosecution, despite having an obligation to prove that the sample which was drawn from the liquor allegedly taken possession from appellant was subjected to chemical analysis, failed to do so. According to him, in this case, as Ext.P1 Mahazar as well as Ext.P8 forwarding note does not contain the impression of the specimen seal alleged to have been affixed on the sample. In such circumstances, the learned counsel submits that the appellant is entitled for benefit of doubt.

6. On the other hand, the learned Public Prosecutor would oppose the said contentions. The learned Public Prosecutor relies upon the evidence of PWs 1 to 4 and the contemporaneous documents such as Exts.P1, P2 and P3. By placing reliance upon the same it is contended that, the prosecution successfully established the guilt of the accused and no interference in the judgment rendered by the Sessions Court is warranted.

7. The question arises is as to whether the materials produced by the prosecution is sufficient to hold the appellant guilty of the offences alleged. One of the main contention put forward by the learned counsel for the appellant is that, Ext.P1 mahazar does not contain impression of the seal affixed on the sample and it also does not contain the description of the same. The evidence of PW1 also does not contain description thereof. In Moothedath Sivadasan and Another v. State of Kerala [2021 KHC 3232] this Court has specifically held that, the absence of description of seal in the mahazar is a serious lacuna in the prosecution case. In Vijay Pandey v. State of Uttarpradesh [AIR 2019 SC 3569] the hon’ble Supreme Court was pleased to hold that, merely because of the reason that the prosecution produced the chemical analysis report, the accused cannot be convicted. The prosecution has to relate the chemical analysis report with the sample that was collected from the articles seized from