Procedural lapses in evidence collection negate conviction under the Abkari Act.

O R D E R

The concurrent findings of the Judicial First Class Magistrate, Thalassery and the Additional Sessions Judge (Adhoc)-II, Thalassery convicting and sentencing the petitioner for the commission of offence under Section 55 (a) of the Abkari Act , and Rule 9 of Foreign Liquor Rules , 1953, are under challenge in this revision.

2. The prosecution case is that on 24.07.1996 at about 7:00 p.m, the petitioner was found to have been travelling in an autorickshaw along with another accused, with the possession of 10.8 litres of Indian Made Foreign Liquor (IMFL) in 60 bottles of 180 ml capacity each, without any lawful authority or licence. The offence was detected by the Preventive Officer of Peravoor Excise Range, who claimed to have arrested the petitioner on the spot, and seized the contraband item. Sample is also said to have been collected then and there. The rest of the investigation is said to have been conducted by the Excise Inspector of Excise Range Office, Thalassery.

3. Before the Trial Court, the prosecution examined five witnesses as PW1 to PW5, and brought on record six documents as Exts.P1 to P6. MO1 series and MO2 were identified as material objects. The petitioner did not opt to adduce any defence evidence. On the basis of the aforesaid evidence, the learned Magistrate convicted and sentenced the petitioner under Section 55 (a) of the Abkari Act , and Rule 9 of Foreign Liquor Rules , to simple imprisonment for six months and fine Rs.25,000/- with a default clause of simple imprisonment for three months. The aforesaid verdict of conviction and sentence was upheld by the Appellate Court vide its judgment dated 06.10.2006 in Crl.A No.463/2001. It is the above concurrent verdicts of the Courts below which are 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. As already stated above, the charge against the petitioner is that he was found to have been in possession of 10.8 litres of IMFL contained in 60 bottles of 180 ml capacity each while travelling in an autorickshaw. The Preventive Officer, who detected the offence, was not examined as a witness from the part of the prosecution. Ext.P1 is the mahazar said to have been prepared by the Detecting Officer at the time when the contraband items were allegedly seized from the petitioner.

According to the prosecution, sample was taken on the spot by the Detecting Officer. However, Ext.P1 mahazar does not disclose the procedure adopted by the Detecting Officer while he is said to have taken sample from the contraband foreign liquor. Though it is stated that the sample bottle was sealed by the Detecting Officer, neither Ext.P1 nor any other record would disclose the seal impression of the seal said to have been fixed at the time of collection of sample. The property list, along with which the sample bottle and the remaining contraband items were produced before the learned Magistrate, was not marked in evidence. There is absolutely nothing on record to show that the sample bottle and the remaining contraband items were received at the office of the learned Magistrate, after verifying and confirming that the seals affixed in the sample bottle and the contraband items, were intact and tallying with any specimen seal provided by the Detecting Officer. Thus, it cannot be said that the sample was collected in a foolproof manner and transmitted to the Court in a tamper proof condition. It is also pertinent to note that there is absolutely no evidence adduced by the prosecution to show that the sample bottle was despatched from the Judicial First Class Magistrate Court, Thalassery to the Chemical Examiner’s Laboratory, after ensuring that there are no chances of tampering of the said item. The evidence adduced b