Proper protocols for sample collection and evidence handling under the Abkari Act are essential; failure results in insufficient grounds for conviction.

JUDGMENT

The accused in SC No.662/2012 (2nd accused in OR No.68/2003 of Ranni Excise range) on the file of the Additional District & Sessions Judge No.II, Pathanamthitta has preferred this appeal challenging the conviction and sentence imposed against him as per judgment dated 2.1.2014 in the above case. The State of Kerala is the respondent herein.

2. I would like to refer the parties in this appeal as 'prosecution' and 'accused' hereinafter, for easy reference.

3. The brief facts of the case:

The prosecution allegation is that on 1.10.2013 as directed by the Deputy Excise Commissioner Southern Range, Excise officials of Kollam conducted raid in TS No.18/03-04 of Ranny Range and seized arrack from the toddy shop where license was given in favour of the 2nd accused. Thereafter, contraband was recovered and crime alleging commission of offences under Section 8 (1)

r/w 8 (2) of Abkari Act was registered and investigated. Thereafter, charge laid against Accused Nos.1 and 2 before the Judicial First Class Magistrate Court, Ranny. Thereafter, case against the 2nd accused was committed to the court of Sessions after refiling the case of the 1st accused as his presence could not be secured, during committal stage.

4. The learned Sessions Judge made over the case to the Additional District & Sessions Judge II, Pathanamthitta for trial and disposal.

5. The Trial court framed charge and went on trial. During trial, PW1 to PW5 and CW1 were examined, and marked Ext.P1 to P12, C1 and Mo1 to MO3 were marked on the side of the prosecution. Thereafter, the trial court examined the accused under Section 313(1) (b) of Cr.P.C and recorded the explanation of the accused regarding the incriminating circumstances found against him in evidence. Though opportunity was given to the accused to adduce defence evidence, no defence evidence was adduced in this case.

6. The trial court after hearing bothsides and appraising the evidence available, convicted and sentenced the accused as under:

The accused is sentenced to undergo R1 for 5 years for the offence punishable u/s 8 (1) r/w 8 (2) of Abkari Act and also sentenced to pay a fine of Rs.2 Lakhs in default to undergo SI for 6 months. The accused is also gound guilty of the offence punishable u/s 56(b) of the .

7. The accused, who is aggrieved by the above conviction and sentence, is before this Court by filing this appeal.

8. Heard Sri.V.Sethunath, learned Counsel appearing for the appellant/accused and Sri.Aravind Mathew, learned Public Prosecutor. Perused the evidence available.

9. It is submitted by the learned Counsel for the appellant/accused that in this case, the case of the 1st accused was split up and refiled. According to the learned Counsel, in a case of this nature, conviction of the 2nd accused, who is the licencee is possible only if the 1st accused got convicted. In this connection, learned Counsel pointed out the decision reported in[2010 (2) KLT 783], Mohanan P.M. Vs. State of Kerala, wherein it was held that, when the first part of the prosecution case, especially against the 1st accused, was repelled by the trial court, the trial court could not be justified in convicting the 2nd accused. A Similar case was considered in the above decision. However, the ratio of the decision has no application in the present case, wherein the case of the 1st accused is yet to be tried.

10. Another point argued to unsustain the verdict of the trial court is regarding the manner of collection of sample. It is pointed out that tamper free collection of samples and forwarding the same to the chemical examiner not at all established in this case. In this connection, evidence of PW3 – Detecting Officer, was given emphasis. It is submitted by the learned Counsel for the accused/appellant that PW3 had not given evidence as to the nature of seal used on the bottle containing the sample and the nature of the specifimen seal used to affix on the seizure mahazar as well as in the forwarding note.

11. But the learned Pu