Effective prosecution under the Abkari Act requires strict adherence to evidence handling protocols, including seal documentation.

J U D G M E N T

This appeal has been filed challenging the conviction and sentence imposed on the appellant/accused in S.C. No.5/2002 on the file of the Additional Sessions Judge (Abkari Cases), Kottarakkara in a prosecution under Sections 55 (b) & (g) of the Abkari Act .

2. The gist of the prosecution case is that on 05-03-2000 at about 12.oo noon the appellant/accused was found in possession of 575 litres of wash in 3 barrels and engaged in the distillation of arrack and sale of the same. It is alleged by the aforesaid act the appellant/accused committed offences under the aforesaid provisions of the Abkari Act . Following investigation of the case a final report was filed before the Judicial First Class Magistrate Court-I, Punalur from where it was committed to the Sessions Court as the offence was exclusively triable by a Court of Session. The matter was originally made over to the Assistant Sessions Court, Kottarakkara from where it was transferred to the Additional Sessions Judge (Abkari Cases) Kottarakkara for the purpose of trial and disposal. Charges were framed by that court against the appellant/accused under Section 55 (a), (b) & (g) of the . The appellant/accused pleaded not guilty. The prosecution led evidence by examining PWs 1 to 5 and marking Exts.P1 to P6 documents and identifying M.Os 1 to 5 series. On closure of evidence the appellant/accused was questioned under Section 313 Cr.P.C. He denied all incriminating evidence appearing against him. Since there were no circumstances warranting acquittal of the appellant/accused under Section 232 Cr. P.C., the appellant accused was called upon to enter his defence evidence. The appellant/accused examined DW1, the owner of a vehicle in which he claimed that he was working as a Driver and also marked two documents, namely registration certificate of the vehicle belonging to DW1 and a copy of his Driving licence. On an analysis of the evidence, the trial court came to the conclusion that the prosecution has succeeded in proving the case against the appellant/accused and therefore convicted him under Section 55 (a), (b) & (g) of the . After hearing the appellant/accused on the question of sentence, the appellant/accused was sentenced to undergo rigorous imprisonment for two years each and pay a fine of Rs.1,00,000/- each and in default of payment of fine to undergo rigorous imprisonment for a further period of 3 months each under Section 55 (a), (b) & (g) of the . Sentences were directed to run concurrently and set off as permissible in law under Section 428 of Cr.P.C was allowed.

3. The learned counsel for the appellant submits that this appeal is to be allowed on a short point. He submits that there is no description or sample of the seal affixed on the samples in Ext.P1 mahazer. He submits that going by the law laid down by this court inBhaskaran K. v. State of Kerala and another; 2020 KHC 5296 and in Ramachandran v. State of Kerala ; 2021 (1) KLT 793 , the seizure mahazer must either contained a description of the seal used to seal the samples drawn from the contraband seized from the appellant/accused or should contain a sample of the seal affixed so that the crucial link between the contraband seized from the appellant/accused and the chemical analysis report is established. 4. I have heard the learned Public Prosecutor also. On a perusal of the records, I am convinced that the learned counsel for the appellant is right in his submission that Ext.P1 mahazer does not contain either the description or the sample of the seal used for sealing the samples drawn from the contraband seized from the appellant/accused on the date of the incident. Exhibit P1 mahazer shows that samples were immediately drawn from the contraband seized. This court in Bhaskaran (supra) held as follows:-

“21. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be