The prosecution must establish the identity of the accused and the integrity of evidence, including proper handling of seized items, to secure a conviction.

O R D E R

The revision petition is filed under Section 397 read with 401 of the Code of Criminal Procedure, 1973 , by the accused in S.C. No.247 of 2003 on the file of the Sessions Division, Wayanad. As per the judgment dated 19.03.2013, passed by the Assistant Sessions Judge, Sulthan Bathery the petitioner was convicted and sentenced to undergo simple imprisonment for one year and to pay fine of Rs.1,00,000/- for the offence under Section 55 (a) of the Abkari Act . In default of payment of fine, he was directed to undergo further simple imprisonment for a period of three months.

2. The appeal filed by the petitioner as Crl.Appeal No.38 of 2013 was dismissed as per the judgment dated 19.03.2015 passed by the learned Second Additional Sessions Judge, Kalpetta, confirming the conviction and sentence imposed by the trial court.

3. The prosecution case is that on 24.03.2001 at about 8.00 p.m., while PW4 the Sub Inspector of Police and party of Sulthan Bathery were conducting a routine inspection, they found a Maruti car bearing registration No.TSR-2301, driven by the accused through Noolpuzha, Sulthan Bathery public road near the bridge at Vallathoor, carrying 525 litres of rectified spirit in 15 cans of 35 litres each.

4. After completing the formalities, the accused was arrested and the investigation was proceeded with. On completion of the investigation, the Circle Inspector of Sulthan Bathery filed the final report before the Judicial First Class Magistrate-I, Sulthan Bathery and it was taken cognizance as C.P.No.88 of 2002. After complying with Section 207 Cr.P.C ., the learned Magistrate committed the case to the Sessions Division, Wayanad, under Section 209 Cr.P.C . After numbering the case as S.C.No.247 of 2003, it was made over to the Court of Assistant Sessions, Sulthan Bathery, for trial and disposal. From the side of the prosecution, PWs 1 to 11 were examined and Exts.P1 to P9 documents and MO1 to MO4 material objects were marked. After completion of the prosecution evidence, the accused was examined under Section 313 (1) (b) Cr.P.C . and he denied all the incriminating circumstances brought out against him. Having found the case as unfit for acquittal under Section 232 Cr.P.C ., the trial court posted the case for defence evidence. However, no defence evidence was adduced from the side of the accused. After hearing both sides, the trial court found the accused guilty and sentenced him as said above. The appellate court also confirmed the conviction and sentence.

5. Heard the learned counsel for the revision petitioner/accused and the learned Public Prosecutor.

6. The learned counsel for the petitioner/accused argued that only the petitioner herein was allegedly arrested from the place of occurrence, though according to the prosecution, four persons were there in the car. There were 35 cans containing spirit as per the prosecution case. However, the sample was drawn only from three cans and the random selection of samples from three cans alone is not sufficient, since the cans were not in sealed condition as that of the case of Indian Made Foreign Liquor. The accused was not identified by any of the witnesses during examination before the trial court. Therefore the identity of the accused cannot be said as proved. The learned counsel by relying on the judgments of this Court in Girish v. State of Kerala [ 2023 (7) KHC 435 ] further argued that in Ext.P1 seizure mahazar as well as in Ext.P5 property list, there are no specimen seals of the detecting officer affixed, which is mandatory to assure that the property reached the court in a tamper proof condition. Moreover, there is a delay of four days in reaching the property to the court and the same is not properly expl