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.474/2000 of the Additional Sessions Judge, Fast Track-III, Thiruvananthapuram in a prosecution under Sections 8 (1) and 8 (2) of the Abkari Act.

2. The gist of the prosecution case is that on 20-12-1997 at about 5.45 p.m while PW2 and party were conducing patrol duty, the appellant/accused was found in possession of 10 litre jerry can containing about 7 litres of arrack and thereby he committed the offences under the aforesaid provisions of the Abkari Act. Following the investigation a final report was filed before the Judicial First Class Magistrate Court-II, Attingal from where it was committed the court of Session as the offences were exclusively triable by a court of Session. The case was originally made over to the Assistant Sessions Court, Attingal from where it was transferred for trial and disposal to Additional Sessions Judge, Fast Track-III, Thiruvananthapuram. Charges were framed alleging offences under the aforesaid provisions of the Abkari Act. The appellant/accused pleaded not guilty. Prosecution led evidence by examining PWs 1 to 4 marking Exts.P1 to P8 documents and identifying the material object. Following closure of prosecution evidence the appellant/accused was questioned under Section 313 Cr.P.C. The appellant/accused denied all the incriminating materials appearing against him and put up a case that he was falsely implicated in the matter. However, he failed to adduce any defence evidence. On a consideration of the matter the trial court convicted the appellant/accused for offences under Sections 8 (1) & 8 (2) of the Abkari Act and sentenced him to undergo simple imprisonment for a period of 6 months and pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for 3 months.

3. The learned counsel for the appellant would submit that the appeal is to be allowed on a short point. He submits that Ext.P7, though, described in the judgment as the request for chemical examination is actually the forwarding note through which the samples of the contraband seized from the appellant/accused was forwarded for chemical examination. He submits that a perusal of Ext.P7 will show that Ext.P7 does not contain the sample of the seal used on the samples drawn for the purpose of chemical examination. On a perusal of Ext.P7 I find that the sample of the seal used on the samples forwarded for chemical examination has not been affixed on the same. Therefore the crucial link between the contraband seized from the appellant/accused and the chemical analysis report has broken. This Court in Bhaskaran K.

v. State of Kerala and another; 2020 KHC 5296 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 mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court (See Achuthan v. State of Kerala: 2016 (1) KLD 391: ILR 2016(2) Ker 145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector: 2015 (1) KHC 424). When the specimen of the seal affixed on the sample bottle is not produced before the Court and forwarded to the chemical examiner for verification to ensure that the sample seal, so provided, is tallying with the