A fool-proof chain of custody for the contraband and sample is essential; failure to establish custody and proper production of samples warrants acquittal in a strict liability liquor offence.

JUDGMENT

The appellant is the accused in S.C. No. 177 of 2013 on the file of the Court of Session, Kozhikode and he is challenging the conviction and sentence imposed on him for the offence under Section 55 (a) of the Kerala Abkari Act as per the judgment dated 31.3.2014.

2. The prosecution case is that on 08.02.2012, at 12.30 hours, the accused was found transporting 8.20 litres of Indian Made Foreign Liquor in a bus by name ‘Sahara’. The offence was detected by the Excise Preventive Officer and party attached to Excise Circle Office, Vatakara while checking vehicles passing through the National Highway in front of AVT Maruti showroom at Vatakara. After completing the investigation, the final report was filed by the Excise Range Inspector of Vatakara Excise Range.

3. The trial court, after framing charge, examined PWs 1 to 6 and marked Exhibits P1 to P8 from the side of the prosecution and no evidence adduced from the side of the defence.

4. After trial and hearing both sides, the trial court found the accused guilty of the offence under Section 55 (a) of the Kerala Abkari Act r/w Rule 9 of Foreign Liquor Rules and sentenced him to undergo simple imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for six months.

5. Heard both sides and perused the records.

6. The learned counsel for the appellant argued that the prosecution has not succeeded in establishing tamper-proof unbroken chain of custody of the alleged contraband articles and sample and there is no evidence as to who was in custody of the seized contraband and sample in the Excise Circle Office, Vatakara and as to who produced the same before the Excise Inspector of Vadakara Excise Range for the purpose of registering the crime and occurrence report.

7. PWs 1 and 2 are the Preventive Officers attached to Excise Circle Office, Vatakara and their evidence in chief examination only shows that they produced the accused, records and properties in the Excise Circle Office. In cross examination, PW1 stated that he produced the accused and properties before the Excise Circle Inspector, Jacob Francis. But, the prosecution has not examined the said Jacob Francis as a witness in this case.

8. PW4 deposed that on 08.02.2012, while working as Preventive Officer in Excise Range Office, Vatakara, he was in charge of the Excise Inspector and on that day, at about 4.30 p.m., when the accused, records and properties were produced from the Excise Circle Office, he registered Exhibit P3, crime and occurrence report. In spite of a specific challenge in cross examination that the accused, records and properties were not produced before him, PW4 has not disclosed the identity of the officer who produced the accused, records and properties before him. There is no documentary evidence to show who was entrusted by the Excise Circle Inspector of Vatakara to produce the accused, documents and properties before the Excise Range Office, Vatakara.

9. The learned counsel for the appellant pointed out that PW4 has no case that he prepared Exhibit P5, list of sample, and while examining PW6, Excise Inspector who conducted the investigation, the prosecution marked Exhibit P5 list of sample said to be prepared by PW4.

10. It is pertinent to note that PW4 has also not deposed that he prepared the forwarding note. But, the prosecution marked Exhibit P6 copy of the forwarding note said to be prepared by PW4 through PW6, Investigating Offi