JUDGMENT

This appeal is directed against the judgment dated

07.02.2007 in S.C.No.27/2002 on the file of the Additional Sessions Court Fast Track (Adhoc), Mavelikkara.

2. By the impugned judgment, the appellant was convicted for the offence punishable under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/-.

3. The prosecution case is that on 03.11.1998, at about 12.00 p.m., the appellant/accused was found in possession of 1500ml of illicit arrack in two bottles near Moorthi temple, Palathingal, Vettiyar Village.

4. After completing the investigation, final report was submitted against the appellant before the Judicial First Class Magistrate Court, Mavelikkara. The case was committed to the Sessions Court, Alapuzha, from where it was made over to the Trial Court. On the appearance of the accused, the Court framed charge against him. He pleaded not guilty to the charge.

5. The prosecution examined PWs1 to 6 and proved Exts.P1 to P7 and MOs 1 to 3.

6. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C was recorded. He pleaded total 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant as aforesaid.

7. Heard Sri.George Varghese Perumpallikuttiyil, the learned counsel for the appellant and Smt.Rekha.S., the learned Senior Public Prosecutor appearing for the respondent.

8. The learned counsel for the appellant/accused contended that the prosecution miserably failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory.

9. The learned counsel relied on the following circumstances to establish his contentions:-

(i) The nature and description of the seal stated to have been affixed on the sample allegedly drawn from the scene of occurrence had not been narrated in Ext.P1 seizure mahazar.

(ii) There is nothing to show that the specimen impression of the seal was forwarded to the Chemical Examiner’s Laboratory.

10. I have carefully examined the seizure mahazar and the other contemporaneous records prepared at the scene of occurrence. The nature of the seal stated to have been used by the detecting officer had not been mentioned either in the seizure mahazar or any other documents. It is further seen that the specimen of the seal had not been produced in the Court to enable the Court to satisfy the genuineness of the sample produced in the Court. As also, there is no evidence to show that a forwarding note was prepared and forwarded to the Chemical Examiner’s laboratory. The law on these aspects was considered by this Court in Baburaj v. State of Kerala [2021 (6) KLT 416]. Following a series of precedents in Baburaj (supra), this Court held thus:-

“22. The crux of the offences under the Abkari Act, by its very nature, is the seizure of the contraband. The prosecution in a case of this nature can succeed only if it establishes that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory.

23. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamper- proof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when the contraband reaches the laboratory is required to be established by the prosecution.

24. In Sasidharan v. State of Kerala [2007 (1) KLT

720], this Court had occasion to elucidate on the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reache