Proper evidence handling and documentation are critical to ensure the integrity of samples in criminal cases involving illicit substances.

JUDGMENT

This appeal has been filed challenging the conviction and sentence imposed on the file of the Additional Sessions Judge Fast Track Court-II, Alappuzha in a prosecution for an offence under Sections 8 (1) and 8(2) of the Abkari Act .

2. The gist of the prosecution case is that on 22.7.2002 at about

5.30 p.m., the appellant/accused was found transporting about 600 ml of illicit arrack and thereby committed the offence alleged. Following investigation of the matter, a final report was filed before the Judicial First Class Magistrate Court, Kayamkulam, which was committed to the Court of Sessions for trial and disposal. Finally, the matter was made over to the Additional Sessions Judge, Fast Track-II, Alappuzha. Following framing of charge and a plea of not guilty, the case was posted for trial. The prosecution examined PWs 1 to 6 and marked Exts.P1 to P7 and identified material object (MO1). On closure of the prosecution evidence, the appellant/accused was questioned under Section 313 Cr.P.C. The appellant/accused denied the entire incriminating circumstances against him, but did not adduce any defence evidence. On an appreciation of the evidence tendered by the prosecution, the Court convicted the appellant/accused for an offence under Sections 8 (1) and 8(2) of the Abkari Act and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.1 lakh and in default of payment of fine to undergo simple imprisonment for a further period of three months. No sentence was imposed under Section 55(a) of the . Set off as permissible under law was also granted.

3. The learned counsel for the appellant/accused would submit that the appeal is liable to be allowed and the accused acquitted on a short point. He submits that the identity of the sample sent for chemical analysis is suspicious in this case as Ext.P1 mahazhar prepared at the time when the contraband article was seized, does not bear the sample of the seal affixed on the sample drawn for the purpose of chemical analysis.

4. I have perused Ext.P1 mahazar. I am satisfied that the learned counsel for the appellant/accused is right in contending that the same does not bear the sample of the seal nor any description of the seal with clarity enabling this Court to reach a conclusion that the identity of the sample with the contraband article seized from the appellant/accused has not been compromised. 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 seal affixed on the sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused