The prosecution must demonstrate a clear link between the seized contraband and the laboratory sample for a conviction under the Abkari Act.

JUDGMENT

Aggrieved by the judgment dated 27.11.2006, passed by the Additional Sessions Judge, Fast Track (Adhoc), Mavelikkara in S.C.No.339/2002, the accused has preferred this appeal.

2. The trial court convicted the accused for the offences punishable under Sections 8 (2) and 55(a) of the Abkari Act .

3. The prosecution case is that on 22.8.1999 at 5.45 pm., the accused was found transporting 5 litres of illicit arrack in a can through the Panchayat Road leading to Pannakulangara-

Panachimoodu road.

4. After completion of investigation, final report was submitted against the accused for the offences punishable under Sections 55 (a) and 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Kayamkulam. The case was committed to the Sessions Court, Alappuzha from where it was made over to the Additional Sessions Court, Fast Track (Adhoc), Mavelikkara. On appearance of the accused charges were framed against him for the offences punishable under Sections 8 (2) and 55(a) of the . The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offences.

5. The evidence for the prosecution consists of the oral evidence of PWs 1 to 6, Exts.P1 to P8 and MO1.

6. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C was recorded. He pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. A witness was examined as DW1 from the side of the accused. The learned trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offences under Sections 8 (2) and 55(a) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- for the offences punishable under Sections 8 (2) and

55(a) of the Abkari Act .

7. Heard Sri.R.Gopan, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent.

8.

The learned counsel for the appellant contended that the prosecution failed to establish that the articles allegedly seized from the possession of the accused eventually reached the hands of Analyst at the Chemical Examiner's laboratory.

9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charges against the accused. He contended that sufficient materials are there to establish the prosecution case.

10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not.

THE POINT

11. PW4, the Preventive Officer, Karthikappally Excise Range, detected the offence. He has given evidence that on 22.8.1999 at 5.45 pm., the excise team led by him was on patrol duty and he found the accused transporting 5 litres of illicit arrack in a black can. PW4 gave evidence that the contraband substance was seized from the possession of the accused by way of Ext.P1 seizure mahazar.. The accused was arrested from the spot.

12. PW3, the Excise Preventive Officer, Excise Range Office, Karthikappally, who had accompanied PW4, has given evidence in support of the prosecution case.

13. PWs 1 and 2, the independent witnesses, did not support the prosecution.

14. PW5, the Excise Inspector, Excise Range Office, Karthikappally received the contraband substance and registered Crime No.49/1999, alleging the offences punishable under Sections 8 (2) and 55(a) of the Abkari Act . PW5 produced the articles seized from the possession of the accused as per Ext.P5 list before the court. PW6, the Excise Inspector, Karthikappally conducted investigation and submitted final report before the Magistrate's Court on 4.1.2002.

15. The learned counsel for the appellan