The prosecution must ensure tamper-proof handling and chain of custody for seized evidence, failing which the case may be dismissed.

J U D G M E N T

The appellant is the accused in S.C. No. 436 of 2010 on the file of the Additional District and Sessions Judge, Fast Track (Adhoc-II), Kozhikode. He is challenging the conviction and sentence imposed on him for the offence under Section 55 (g) of the Abkari Act .

2. The prosecution case is that on 19.05.2008, at about 4 p.m., the accused was found in possession of 16 litres of wash prepared for manufacturing arrack in a plastic container by the Excise Preventive Officer and party at a place called Arakkumpatta.

3. The trial court after framing charge, examined PWs 1 to 5 and marked Exhibits P1 to P7 and MO1 from the side of the prosecution and no evidence adduced from the side of the accused.

4. After trial and hearing both sides, the trial court found the accused guilty of the offence under Section 55 (g) of the Abkari Act and sentenced him to undergo rigorous imprisonment for one year 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 Smt. Nayanza Faris C.P., the learned counsel representing the learned counsel for the appellant on record, and Smt.

Hasnamol N.S., the learned Public Prosecutor.

6. The learned counsel for the appellant argued that the independent witness examined from the side of the prosecution turned hostile and a perusal of Exhibit P5, copy of the forwarding note, and Exhibit P7, report of the chemical examiner, would show that there is inordinate delay in forwarding the sample to the Chemical Examiner's Laboratory and that the mandate of Section 53A is not complied in this case and that the prosecution has not complied with procedural requirements for ensuring tamper proof collection of samples and production of the same in the Chemical Examiner's Laboratory in a 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 PW1, Preventive Officer who detected the offence, is supported by the evidence of PW2, excise guard, and Exhibit P7 report of the chemical examiner would show that ethyl alcohol was detected in the sample and there is no reason to interfere with the findings in the impugned judgment.

8. PW1 is the Preventive Officer who detected the offence and PW2 is the excuse guard who accompanied PW1 and regarding the occurrence they deposed in accordance with the prosecution case. PW3, the independent witness examined by the prosecution, turned hostile to the prosecution and deposed that he has not witnessed the alleged occurrence. According to PW1, after arresting the accused, he took 500 ml. of wash as sample in a one litre plastic bottle and destroyed the remaining wash at the place of occurrence.

10. The prosecution has no case that the representative sample of the contraband was drawn in the presence of the Magistrate as required under Section 53A (2)(c) of the Abkari Act . of the , inserted by Act 1 of 2003 with effect from 03.09.2002, reads thus:

“53A. Disposal of seized liquor, intoxicating drugs or articles. -

(1) Notwithstanding anything contained in this Act, the State Government may having regard to the nature of the liquor, intoxicating drug, or article, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant consideration, by notification in the official Gazette, specify such liquor, intoxicating drug or article which shall, as soon as may be after their seizure, be disposed of by the authorised officer referred to in section 67B, in such manner as the Government may, from time to time determine after following the procedure hereinafter specified.

(2) Where any such notified liquor, intoxicating drug or, article