Insufficient evidence regarding the sealing and handling of the contraband led to the acquittal in the absence of a tamper-proof chain of custody.

O R D E R

The concurrent verdicts of the Assistant Sessions Court, Pathanamthitta and the Additional Sessions Court (Adhoc)-I, Pathanamthitta in S.C No.471/2011 and Crl.A No.33/2013 respectively, convicting and sentencing the petitioner for the commission of offence under Section 8 (1) and (2) of the Abkari Act , are under challenge in this revision petition.

2. The prosecution case is that on 16.07.2008, at about 6:00 p.m, the petitioner was found to have been in possession of 5 litres of arrack in a jerry can by the side of a public road in Kaviyoor Village. According to the prosecution, another person was also there along with the petitioner, carrying 10 litres of arrack in a jerry can of 10 litre capacity when the offence was detected by the Excise Circle Inspector, Thiruvalla, but he could not be apprehended since he fled from the scene, seeing the excise party. The above said person was arraigned as the second accused.

3. In the trial before the learned Assistant Sessions Judge, the prosecution examined five witnesses as PW1 to PW5, and marked seven documents as Exts.P1 to P7. Two material objects were identified as MO1 and MO2. After analysing the above evidence, the Trial Court convicted and sentenced the petitioner herein for the commission of offence under Section 8 (1) and (2) of the Abkari Act , to simple imprisonment for 1½ years and fine Rs.1,00,000/- with a default clause of simple imprisonment for three months. The second accused was acquitted. Though the petitioner challenged the aforesaid verdict in appeal, the learned Additional Sessions Judge, who considered the appeal, declined to interfere with the findings of the Trial Court. Accordingly, the appeal was dismissed confirming the conviction recorded and 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 witnesses examined from the part of the prosecution, PW1 and PW2, the independent witnesses turned hostile and discredited the prosecution story. PW3, the Excise Inspector who detected the offence, and PW4, the Preventive Officer who assisted him, testified before the Trial Court in support of the prosecution case. According to the above witnesses, samples were collected then and there, immediately after the seizure of the contraband arrack from the petitioner. However, the modalities followed by the Detecting Officer for securing the sample bottles by affixing seal and label, are not narrated in Ext.P1 mahazar. Apart from a casual and superficial statement that the sample bottle was sealed, the Detecting Officer has not narrated the sealing process to show that the samples were secured in a tamper proof condition. Even in the evidence tendered before the Trial Court, PW3 and PW4 have not described the procedures of sealing the sample bottle. It is not even stated in Ext.P1 mahazar that the sample bottle was affixed with label, as required by law. Though it is stated that the sample bottle and the other contraband items were transmitted to the Court vide Ext.P4 property list, there is absolutely no evidence to show that the aforesaid items were received at the office of the Judicial First Class Magistrate Court concerned, after verifying and confirming that the seal impressions found in those items tallied with the specimen seal impressions provided. So also, there is total absence of evidence to show that the sample bottles were transmitted to the Chemical Examination Laboratory in a tamper proof condition. The above vital requirement for a succe