The prosecution must prove uninterrupted chain of custody of contraband for a valid conviction.

JUDGMENT

The appellant was the accused in S.C.No.91 of 2014 on the files of the Additional Sessions Court-I, Kalpetta. By the impugned judgment dated 09.03.2015, the appellant was found guilty for the offence under Section 55 (g) of the Abkari Act , 1077 (for short, 'the Act') and was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- in default to undergo rigorous imprisonment for three months. The appellant assails the said conviction and sentence imposed upon him. 2. According to the prosecution, on 16.10.2012, the accused was found in possession of 30 litres of wash used for the purpose of preparing illicit arrack and thereby committed the offence under (g) of the Act.

3. In order to prove the prosecution case, they examined PW1 to PW6 and marked Ext.P1 to Ext.P12 apart from MOs.1 to 3. After analysing the prosecution evidence, the trial court came to the conclusion that the accused was guilty of the offence and was sentenced as mentioned earlier.

4. I have heard the learned counsel for the appellant as well as the learned Public Prosecutor.

5. The prosecution had, in order to prove its case, examined the Preventive Officer as PW2 and the Excise Guard as PW3 apart from the Excise Inspector as PW6. The forwarding note was marked as Ext.P10, while the chemical examiners' report was marked as Ext.P12. The independent witnesses examined in the case as PW4 and PW5 had turned hostile and their deposition during cross examination is not sufficient by itself to conclude on the guilt of the accused. Hence, the only evidence available to prove the prosecution case are those adduced through PW1 to PW3 and PW6.

6. In Ext.P12 forwarding note, it is seen mentioned that the sample of contraband was received by the chemical examiners' laboratory through Excise Guard Sri.Santhosh on 29.10.2012. The said Sri.Santhosh was not examined by the prosecution. The covering letter to the forwarding note Ext.P10 is dated 20.10.2012. What happened to the sample of contraband from 20.10.2012 till

29.10.2012 has not come on record as evidence of the prosecution. This anomaly is a serious lacuna in the prosecution case as it cannot be concluded that the contraband had reached the chemical examiners' laboratory in a tamper proof condition. The person who was in custody of the said contraband during the period from 20.12.2012 till 29.10.2012 having not been examined, there is a dearth of evidence regarding the nature of the contraband and its custody during the said period.

7. Apart from the above, the prosecution case itself indicates that the contraband was seized from the possession of the accused on 16.10.2012, while the sample for analysis was handed over to Sri.Santhosh only on 20.10.2012. Those four days of custody had not been properly accounted for, nor is there any evidence to indicate the person in whose custody the said contraband was retained. The property clerk who would have been in custody of the contraband during the said period was also not examined and hence, there is yet again an absence of evidence regarding the custody of the sample of contraband from 16.10.2010 till 20.10.2010.

8. In this context, it is apposite to refer to the decision in Kumaran P. v. State of Kerala and Another [ 2016 (5) KHC 632 ] as well as the decision inBaby v. State of Kerala [ 2025 KLT OnLine 2282 ]. In the above two decisions, this Court had observed that it is the bounden duty of the prosecution to prove that the sample of contraband drawn from the spot remained in safe custody until it reached the hands of the chemical examiner for analysis. This Court further observed that only when the secured and uninterrupted chain of custody of the contraband is proved, can it be held that the sample analysed was the very same sample drawn fro