Chain of custody in drug cases is paramount; failure to comply with procedural requirements results in reasonable doubt and justifies acquittal.

JUDGMENT

The appellant is the accused in S.C. No. 93 of 2012 on the file of the Additional Sessions Judge-III, Manjeri and he is challenging the conviction and sentence imposed on him for the offence under Section 8 (2) of the Abkari Act as per the impugned judgment dated 14.08.2014.

2. The prosecution case is that while the Excise Inspector and party were on patrol duty on 10.12.2010, and when they reached Thalappakuzhi at about 2 p.m., they saw the accused coming with a plastic can containing one litre of arrack and the accused is thereby alleged to have committed the offence under Section 8 (2) of the Abkari Act .

3. Before the trial court, when the accused pleaded not guilty to the charge, prosecution examined PWs 1 to 3 and marked Exhibits P1 to P9(a) and MO1. No evidence adduced from the side of the defence.

4. After trial and hearing both sides, the trial court found that the accused committed the offence under Section 8 (2) of the Abkari Act and sentenced him to undergo rigorous 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 three months.

5. Heard Smt. Anjana K., the learned counsel representing the learned counsel for the appellant on record and Sri. Alex M. Thombra, the learned Senior Public Prosecutor.

6. The learned counsel for the appellant argued that PW3, the independent witness examined by the prosecution, turned hostile and that there is violation of the mandate of Section 53A and Section 38 of the Abkari Act . It is also argued that there are serious inconsistencies and contradictions in the evidence of PWs 1 and 2 and that there is no satisfactory evidence in this case to show that the prosecution has complied the procedural requirements for ensuring tamper proof collection of samples and production of the same in the Chemical Examiner's Laboratory in fool proof condition and therefore, the appellant is entitled for the benefit of reasonable doubt.

7. The learned Public Prosecutor argued that the evidence of PW2, Excise Inspector who detected the offence, is supported by the evidence of PW1, Preventive Officer, and Exhibit P8, report of the chemical examiner.

8. PW2, Excise Inspector, and PW1, Excise Preventive Officer, deposed regarding the occurrence in accordance with the prosecution case. The evidence of PW2 shows that he has taken representative sample of the arrack at the place of occurrence. According to PW2, he took 200 ml. of arrack in a 375 ml. bottle and sealed the sample bottle and the can containing the remaining arrack by using his personal seal and also affixed label containing the signature of the accused and the witnesses in the properties.

9. Exhibit P1 is the mahazar. The arrest memo and arrest notice are marked as Exhibits P2 and P3. Exhibit P4 is the crime and occurrence report and Exhibit P5 is the property list. It is pertinent to note that the date stamp of the jurisdictional Magistrate is not seen affixed in Exhibits P1 to P5. In the absence of date stamp of the court in Exhibits P1 to P5, I find force in the argument of the learned counsel for the appellant that there is no satisfactory evidence in this case as to when the said documents were produced before the court.

10. Rule 28 of the Criminal Rules of Practice, Kerala, 1982 reads thus:

“28. Date stamping of papers and initialling of FIR by Magistrates.—

(1) All papers presented in Court shall be sealed with the date stamp of the Court immediately they are received.

(2) Whenever a First Information Report is received in Court, the Magistrate shall initial it noting the date and time of the receipt thereof.”

11. A perusal of Exhibit P4, crime and o