JUDGMENT

Dated this the 29th day of March 2021 The accused in S.C.No.499/2006 on the file of the Additional District & Sessions Court (Adhoc) Fast Track III, Pathanamthitta has filed this appeal being aggrieved by the judgment dated 30.10.2007, whereby he has been found guilty of offence under Sections 55(a) and 8(1)&(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of 3 years and to pay a fine of ₹1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of 6 months.

2. The case of the prosecution is that on

07.07.2000 at 9.00 p.m., the accused was found in possession of arrack in 202 white plastic covers of 100 ml capacity each and a sealing machine used for sealing the same, in his house at Vettikkulam colony. Before the court below, the prosecution produced Exts.P1 to P14 and PW1 to PW8 were examined. On the side of the defence, DW1 was examined and Exts.D1 to D4 were marked. On the basis of the evidence on record, the court below found the accused guilty of offence and imposed on him the sentence referred above.

3. Heard.

4. Even though several contentions are taken in the memorandum of appeal, I find several infirmities in the prosecution case entitling the appellant to be acquitted. Ext.P1 is the extract of the thondy register and Ext.P8 is the thondy list. Even though the thondy list is dated 08.07.2000, it is seen that the same was produced before the court only on 14.07.2000, 7 days after the detection of the offence. There is no explanation forthcoming regarding the delay of 7 days in producing the contraband articles before the court. This Court has in several decisions held that in the absence of explanation even one day's delay is fatal for the prosecution case (see Ravi v. State of Kerala [2018 (5) KHC 352]). Ext.P10 is the forwarding note, which is seen to have been prepared on 08.07.2000. The document does not show the name of the officer with whom the sample is to be sent for chemical examination. So also, the date on which the Magistrate has counter signed the forwarding note is not stated. The space provided for affixing the impression of the specimen seal used for sealing the sample is left blank. This Court has held that the failure to affix the impression of the specimen seal is fatal for the prosecution. (see Ravi v. State of Kerala (2018 (5) KHC 352), Balachandran V. State of Kerala (2020 (3) KHC 697) & Smithesh V. State of Kerala (2019 (2) KLT 974). So also, this Court has held that the failure to state the name of the Officer with whom the sample is to be sent for chemical examination and the failure to write the date on which the Magistrate has countersigned the forwarding note are also fatal to the prosecution case. [See Jayakumar v. State of Kerala (2018 KHC 3165) & Kumaran v. State of Kerala (2016 (4) KLT 718)]. This is all the more relevant since the chemical analysis report shows that the sample was received through one M.K.Bose, Excise Guard only on 05.06.2001, which is almost one year after the alleged offence. The above facts leads to the conclusion that the prosecution has miserably failed to prove beyond any reasonable doubt that the sample which was allegedly taken at the scene of occurrence had reached the Chemical Examiner for analysis in a tamper proof condition.

6. In the above circumstances, the appellant is entitled to succeed in this appeal. In the result, the judgment dated 30.10.2007 in S.C.No.499/2006 on the file of the Additional District & Sessions Court (Adhoc) Fast Track III, Pathanamthitta is set aside. The appellant is acquitted and set at liberty. The bail bonds, if any, executed by the appellant or on his behalf are cancelled.

This appeal stands allowed.