The prosecution must prove the integrity and chain of custody of evidence to sustain a conviction under the Kerala Abkari Act.

J U D G M E N T

The appellant is challenging the conviction and sentence passed against him under Section 55 (g) of the Kerala Abkari Act (‘the Act’ for short).

2. The prosecution case is that the accused was found carrying 18 litres of wash in a plastic pot on 20.07.2004, at 10.30 p.m. at a place called Koorad in Wandoor by the Excise Preventive Officer of Excise Circle Office, Nilambur.

3. The trial court framed charge against the accused for the offence punishable under Section 55 (g) of the Act. The accused pleaded not guilty and the prosecution examined PWs 1 to 5 and marked Exhibits P1 to P7 and MOs 1 and 2. From the side of the accused, DW1 was examined.

4. After trial and hearing both sides, the trial court found the accused guilty of the offence under Section 55 (g) of the Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for one year.

5. Heard the learned counsel for the appellant and the learned Public Prosecutor and perused the records.

6. The learned counsel for the appellant argued that the evidence of PW4, Excise Inspector who registered Exhibit P4, crime and occurrence report, in chief examination itself will clearly show that he received the accused, documents and material objects in this case from PW3, excise guard, only at 8 a.m., on 21.07.2004. But, it is pertinent to note that as per Exhibit P4, the same is registered at 00.30 hours on

21.07.2004.

7. Even though the prosecution has a case that PW1, Excise Preventive Officer of Nilambur Excise Circle Office who detected the case, handed over the accused, documents and material objects to PW3, excise guard of Kaliyar Excise Range at 00.30 hours on 21.7.2004, PW1 has no case that he informed PW4, Excise Inspector who was in charge of the Excise Range Office, Kaliyar, about the incident at the time when he handed over the accused, documents and properties to PW3, excise guard. PW3, excise guard, has no case that he received the accused, documents and properties from PW1 as per the direction of PW4, Excise Inspector.

8. Admittedly, PW3, excise guard, was in possession of the documents and material objects till he handed over the same to PW4, Excise Inspector, at 8 a.m. on 21.07.2004.

9. A perusal of Exhibit P2 mahazar shows that a sample seal is affixed. But, there is nothing in the mahazar regarding the nature of the sample seal or whose seal is affixed in the samples allegedly taken at the time of occurrence. The evidence of PW1 shows that he took sample of wash in two bottles of 750 ml. capacity. According to PW1, in one of the bottles, 750ml. of wash is taken as sample and in the other bottle, 500 ml. of wash is taken as sample. It is not forthcoming as to why he took only 500 ml. of wash in one sample bottle when he has taken 750 ml. as sample in the other bottle.

10. The evidence of PW4 and Exhibit P5 property list shows that the property list was prepared by PW4 only after he received the properties from PW3, excise guard, at 8 a.m. on 21.07.2004. Even though it is mentioned that the sample bottles were sealed and labelled, there is nothing in Exhibit P5 to indicate the nature of the seal in the sample bottles. Further, PW3, excise guard, has no case that he verified the sample bottles or compared the seal in the sample bottle with any specimen seal at the time when he received the same from PW1.

11. PW3 only deposed that the accused, documents and properties which he received were subsequently handed over to the Excise Inspector. The prosecution has not produced any document to show that PW3, excise guard, was authorise