Proper sample collection and handling procedures are essential for the reliability of prosecution evidence under the Abkari Act.

O R D E R

The judgment dated 03.12.2012 of the Additional Sessions Court-II, Thodupuzha in Crl.A No.129/2012, upholding the conviction of the petitioner for the commission of offence under Section 8 (2) r/w (1) of the Abkari Act , is under challenge in this revision petition filed by the accused in that case.

2. The allegation against the petitioner was that he was found to have been in possession of 35 litres of arrack in a plastic jerry can of 35 litres capacity held by him while coming through a pathway in a tea plantation in Ayyappankovil Village. The Excise Inspector of Excise Range Office, Kattappana and his team are said to have detected the offence and arrested the petitioner on the spot. Sample of the contraband arrack is said to have been collected then and there. After the completion of the further proceedings of investigation, the Excise Inspector of Excise Range Office, Kattappana laid the final report alleging the commission of the aforesaid offence by the accused.

3. In the trial before the Assistant Sessions Court, Kattappana, the prosecution examined five witnesses as PW1 to PW5 and marked 7 documents as Exts.P1 to P7. Two material objects were identified as MO1 and MO2. The petitioner/accused did not choose to adduce any defence evidence. After an evaluation of the aforesaid evidence and hearing both sides, the learned Assistant Sessions Judge convicted the petitioner for the commission of offence under Section 8 (2) r/w (1) of the Abkari Act and sentenced him to undergo simple imprisonment for five years and to pay a fine of Rs.1,00,000/- with a default clause of simple imprisonment for one year. Though the petitioner challenged the above verdict of the Trial court before the Additional Sessions Court-II, Thodupuzha, the learned Additional Sessions Judge declined to interfere with the conviction of the petitioner for the commission of offence under (2) r/w (1) of the . However, the sentence of imprisonment was reduced to simple imprisonment for two years while retaining the fine amount as such. It is the aforesaid judgment of the Appellate Court, which is under challenge in this revision.

4. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor representing the State of Kerala.

5. PW1 is the Excise Inspector of Excise Range Office, Kattappana, who claims to have detected the offence on 12.08.2004 while the petitioner was found to have been carrying 35 litres of arrack in a plastic jerry can of 35 litres capacity. PW4 was the Preventive Officer of Excise Range Office, Kattappana who is said to have assisted PW1 at the time of detection of the offence, arrest of the petitioner, collection of sample and seizure of contraband item. According to the prosecution, 200 ml of arrack was collected as sample on the spot in a bottle of 375 ml capacity. However, the evidence tendered by PW1 and PW4 do not disclose the details of the mode of collection of samples with the necessary steps to avoid tampering. Apart from a casual and omnibus statement that 200 ml of sample was collected in a bottle of 375 ml capacity, and sealed, there is absolutely no description in the evidence of PW1 and PW4 about the manner in which sample was collected and secured in a tamper proof condition. Ext.P3 mahazar prepared by PW1 with regard to the detection of offence, seizure of contraband items and the collection of sample, also is hopelessly silent as to the details of the collection of sample. Ext.P3 mahazar does not contain the impression of the seal used by PW1 for securing the sample in a tamper proof condition. Nor had PW1 and PW4 stated anywhere that the sample was collected in a clean and moisture free bottle. Thus, it has to be stated that the records relied on by the prosecution, as well as the evidence adduced b