JUDGMENT

Dated this the 16th day of March 2021 The accused in S.C.No.924/2003 on the file of the Additional Sessions Judge, Fast Track II, Alappuzha has filed this appeal challenging the judgment dated 05.04.2006, whereby he has been found guilty of offences under Sections 8(1), 8(2) & 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of 3 months.

2. The case of the prosecution is that on

29.07.2002 at 5.30 p.m., the appellant was found transporting arrack in MO1 bottle having the capacity of 750 ml. The officer who detected the offence (PW1) has stated in evidence that after collecting the sample from the articles seized from the appellant, the bottle containing the balance arrack and the bottle containing the sample along with the other records and mahazar were produced by him before the Excise Range Office, Mavelikkara. It is stated that he reached the office at 8.00 p.m. on 29.07.2003 and that he had handed over the records and the thondi articles on the next day on 8.00 a.m. to the Excise Inspector. Nothing is stated in evidence regarding the safe custody of the thondi articles till it was entrusted with the Excise Inspector. The Excise Inspector has stated in evidence that he had received the thondi articles on 30.07.2003 and the same had been produced before the court on the same day along with the property list. Ext.P6 which is the property list does not bear any date. On the side of the prosecution, PW1 to PW5 were examined, Exts.P1 to P7 were marked. On the side of the defence, DW1 was examined. MO1 was produced and identified. On the basis of the evidence on record, the court below found the appellant guilty of the offences charged against him and imposed the sentence referred above.

3. Heard Sri.R.Gopan, learned counsel on behalf of the appellant and Smt.Sylaja, learned Public Prosecutor on behalf of the State.

4. The counsel for the appellant contends that the prosecution has failed to prove beyond any reasonable doubt that the offence has been committed by the appellant. He submits that there is considerable delay in sending the sample for chemical examination and there is no evidence regarding the safe custody of the thondi articles before it was entrusted to the Excise Inspector. It is further stated that PW3 in his evidence has specifically stated that he does not know who had produced the thondi articles. He also points out that the requisition for sending the sample for chemical examination does not show the name of the person with whom it should be sent and does not in any manner indicate the day on which the sample was handed over for forwarding to the chemical examiner.

5. I find considerable force in the contentions raised by the counsel for the appellant. Ext.P7, which is the requisition submitted by the Excise Inspector of Mavelikkara Range, addressed to the chemical examiner does not show the name of the Excise Guard and the said column is left blank. The document does not bear the counter signature of the Magistrate nor any date indicating the date on which the sample was forwarded. Along with the requisition form, a letter from the Judicial First Class Magistrate, Kayamkulam for chemical examination has also been produced. The said document is apparently a carbon copy of the original using black carbon paper and it is seen that the document did not originally have entries against the column for date and the column for entering the name of the person with whom the sample was sent nor did it originally have any entry against the reference number. It is seen that all these columns have subsequently been filled up with blue ink and an entry stating despatched along with the date 27.08.2003 is also seen. The document purports to forward the material objects relating to three crimes, which were before the court, one among them being the crime in question.