The prosecution must prove a clear link between the seized contraband and the laboratory sample; failure to do so undermines the case.

JUDGMENT

Aggrieved by the judgment dated 02.09.2008, passed by the Additional District and Sessions Court, Fast Track (Adhoc-II), Kozhikode, in Sessions Case No.959/2006, 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 one year and pay a fine of Rs.1 Lakh.

2. The prosecution case is that on 18.10.2005 at

5.45 p.m., the appellant/accused was found in possession of 500 ml of arrack in a bottle in the courtyard of his residence No.VII/2011 in Koodaranhi panchayath 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 . 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 5 and proved Exts. P1 to P8 and MO 1 series.

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 challenges the judgment of conviction and sentence on the following grounds:- (1) The delay in the production of the sample before the Court has not been satisfactorily explained by the prosecution.

(2) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory.

8. The alleged seizure was on 18.10.2005. The bottle containing the sample was produced before the Court only on 20.10.2005. The explanation offered by the detecting officer is that he had kept the sample in his safe custody.

9. 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 thus:

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

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 production of the property.”

(emphasis supplied)

10. In Ravi's case (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be an explanation for the delay when there is delayed production of the property. 11. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with the sample could not be ruled out.

12. The detecting officer has not narrated the nature and description of the seal stated to have been aff