The prosecution must establish a proper chain of custody and tamper-proof collection of evidence to secure a conviction under the Abkari Act.

O R D E R

The concurrent verdicts of the Judicial First Class Magistrate Court, Adoor, and the Sessions Court, Pathanamthitta, in C.C.No.985/1997 & Crl.A.No.240/2004 respectively, convicting and sentencing the petitioner for the commission of offence under Section 58 of the Abkari Act , are under challenge in this revision petition.

2. The prosecution case is that in a search conducted at the residence of the petitioner by PW4 and his team, at 05:00 p.m, on 20.11.1996, 89 litres of spirit meant for the purpose of sale was recovered. It is stated that the petitioner, who was present there, had fled from the scene, and hence he could not be apprehended at that time.

3. In the trial before the learned Magistrate, six witnesses were examined from the part of the prosecution as PW1 to PW6, and seven documents were brought on record as Exts P1 to P7. One set of material objects were marked as MO1 series. After an evaluation of the aforesaid evidence, the learned Magistrate found the petitioner guilty of Section 58 of the Abkari Act , and convicted him thereunder. He was sentenced to rigorous imprisonment for one year and a fine of Rs.50,000/- with a default clause of simple imprisonment for three months. Though the petitioner challenged the aforesaid verdict in appeal, the learned Sessions Judge, Pathanamthitta, who considered the appeal, declined to interfere with the findings of the learned Magistrate. Accordingly, the appeal was dismissed, confirming the conviction recorded and the sentence awarded by the Trial Court. Aggrieved by the above concurrent verdicts of the courts below, the petitioner is here before this Court with this revision petition.

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

5. Among the six witnesses examined from the part of the prosecution, the independent witnesses examined as PW1 & PW2 did not support the prosecution case. The prosecution relied on the evidence adduced by the Police personnel, who were examined as PW3, PW4 &

PW6, to establish the charge levelled against the petitioner.

6. Though PW3, PW4 & PW6 tendered evidence with regard to the seizure of 89 litres of spirit from the residence of the petitioner, and the collection of samples from it, the evidence adduced by the prosecution is not sufficient to establish that the samples were collected in a fool-proof manner and transmitted to the Court in a tamper-proof condition. Apart from a casual statement that the two sample bottles were sealed, there is absolutely no indication in Ext P1 mahazar about the seal impression used by PW4 for securing the spirit collected as samples. Neither the testimonies of PW3, PW4 & PW6, nor the records relied on by the prosecution, disclosed the modalities followed by the Detecting Officer for securing the sample in such a manner as to avoid the chances of tampering and manipulations. It is also pertinent to note that Ext P4 property list would reveal that the sample bottle as well as the other contraband items were produced before the Judicial First Class Magistrate Court, Adoor, three days after the detection of the offence. The delay in the above regard has not been explained by the investigating agency. That apart, there is absolutely no evidence to show that the sample bottles were received at the Court after ensuring that the seal affixed in those items tallied with the specimen seal impression provided by the Investigating Officer. Likewise, there is absolutely no evidence to show that the sample bottles were sent to the Chemical Examiner’s Laboratory from the Judicial First Class Magistrate Court, Adoor, in a tamper-proof condition. The forwarding note pertaining to the transmission of t