Improper sampling and documentation in contraband cases can undermine the integrity of evidence, leading to acquittal.

O R D E R

The revision petitioner/accused assails the judgment of conviction and order of sentence passed against him for the offence punishable under Section 8 (1) r/w 8(2) of the Kerala Abkari Act .

2. Prosecution case is that on 02.07.2005 at around 2.30 am, at Kandankadavu on the eastern banks of Pallipuram backwaters, accused was engaged in brewing of arrack. PW1, the Preventive Officer, Excise Range, Cherthala, caught the accused red- handed and he effected seizure of contraband and apparatus for distillation of arrack. Crime was registered against the accused and after investigation, PW5 filed final report against the accused for the offence punishable under Section 8 (1) r/w 8(2) and Section 55 (g) of the Abkari Act.

3. After trial, the learned Assistant Sessions Judge, Cherthala found the accused guilty under Section 8 (1) r/w 8(2) and

55(g) of the Kerala Abkari Act and he was convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.1 lakh each. In default of payment of fine to undergo rigorous imprisonment for three months. In appeal filed as Crl.Appeal No.143/2014 by the accused, the Court of Session, Alappuzha, confirmed the conviction of the accused under Section 8 (1) r/w 8(2) of the Abkari Act. The sentence against the accused for the offence under (1) r/w 8(2) was modified by the appellate court and the accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.1 lakh. In default of fine to undergo simple imprisonment for a period of three months.

The conviction and sentence against the accused for the offence under Section 55 (g) of the Abkari Act was set aside by the appellate court.

4. Challenging the conviction and sentence against the accused under Section 8 (1) r/w (2) of the Abkari Act, accused has preferred this Revision petition contending that the sampling was improper and illegal and therefore the chemical analysis report cannot be relied upon; that Ext.P1 seizure mahazer allegedly prepared by the detecting officer at the time of seizure of the contraband does not contain any seal allegedly affixed in the sample bottles and therefore there is no acceptable evidence to connect the accused with the crime alleged.

5. Per contra, the learned Public Prosecutor supported the finding of conviction and sentence and submitted that prosecution has succeeded in establishing the offence under Section 8 (1) r/w 8(2) of the Abkari Act and there is no reason to interfere with the conviction ad sentence.

6. Heard both sides.

7. The point for consideration is whether the conviction and sentence against the accused warrants any interference by this Court.

8. To substantiate the prosecution case that on

02.07.2005 at around 2.30 am at Kandankadavu, on the eastern banks of Pallipuram backwaters, accused was found distilling arrack, prosecution examined PWs 1 to 5; marked Exts.P1 to P7 and identified MO1 to MO6(a).

9. PW1 is the detecting officer. He was the Preventive Officer of Excise range, Cherthala. According to him, in the wee hours of 2.7.2005, acting on a tip off, when he along with his excise team reached at the eastern banks of Pallipuram backwaters at Kadankadavu, accused was seen indulged in the process of brewing arrack and he was caught red-handed. PW1 has further testified that illicit arrack, wash utensils and apparatus for manufacturing arrack were seized from the spot. PW1 has further testified that he took one sample of arrack from the can and one sample from the wash. He has also testified that after drawing the samples, he destroyed the residue arrack and wash.

10. Ext.P1 is the seizure mahazer prepared by PW1. Ext.P2 is the arrest memo.

11. PWs 2 and 3, who were cited as witnesses did not support the