Prosecution must prove an unbroken chain of custody of evidence in drug-related cases.

JUDGMENT

The appellant was the accused in S.C.No.751 of 2008 on the files of the Additional Sessions Court, Neyyattinkara. He challenges the conviction and sentence imposed upon him by judgment dated 16.01.2015, by virtue of which, he has been found guilty and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- for the offence under Section 8 (1) and 8(2) of the Abkari Act , 1077 (for short,'the Act').

2. The prosecution alleged that on 17.08.2006, at around 12.15 p.m., the accused was found in possession of 5 litres of arrack in a jerry can, in contravention of the Abkari Act and its rules. The accused was arrested on the spot and after taking a sample from the jerrycan, the can was closed and after preparing a mahazar, the accused as well as the contraband were produced before the court on 17.08.2006. Subsequently, the contraband was sent to the chemical laboratory which was received on 28.08.2006. Since the analysis report revealed that the contents of the jerrycan found in the possession of the accused was arrack, the final report was filed arraying the appellant as the accused for the offence under Sections 8 (1) and 8(2) of the Act.

3. In order to prove the prosecution case, PW1 to PW4 were examined and Ext.P1 to Ext.P9 were marked, apart from MO1. After analysing the evidence adduced in the case, the trial court found the accused guilty for the offences alleged and sentenced him to undergo rigorous imprisonment as mentioned earlier.

4. Adv. Nesna K.K., the learned counsel appearing on behalf of Sri.R.Nikhil, the learned counsel for the appellant submitted that the prosecution had miserably failed to prove its case beyond reasonable doubt. According to the learned counsel, the contraband after its seizure had changed several hands before it reached the chemical examiners laboratory and the prosecution had a duty to examine those officials who had handle the sample to prove that there was no tampering with the contraband seized as held in Antony V. State of Kerala [2024 KHC OnLine 1082]. The learned counsel also submitted that the property clerk (thondi clerk) ought to have been examined by the applicant to prove that the custody of the sample with the date of its receipt till the date of forwarding it to the chemical laboratory and since the thondi clerk was not examined, the prosecution cannot be said to have proved its case beyond reasonable doubt and the the accused is entitled for the benefit of doubt. It was also submitted that the Excise Guard who had taken the sample to the chemical analysis laboratory was also not examined, thereby creating serious gap for the prosecution case.

5. Sri.Noushad K.A., the learned Public Prosecutor, on the other hand, submitted that the prosecution had clearly proved the nature of offenced alleged against the appellant and that the seal on the contraband was removed at the chemical analysis laboratory, as is evident from Ext.P7 and therefore the contentions regarding the requirement of examining the thondi clerk is without any basis.

6. I have considered the rival submissions and also perused the evidence adduced by the trial court.

7. The applicant is alleged to have been found in possession of

5 litres of arrack on 17.08.2006, at around 12.15 p.m. Immediately on detection and seizure of the contraband, the same was produced before the jurisdictional Magistrate. However, the contraband was forwarded only on 28.08.2006 thereby incurring a delay of 11 days in forwarding it to the chemical analysis laboratory. The person who was in possession of the contraband during those 11 days has not been examined nor is there any evidence available other th