Due process must be observed in evidence handling to ensure the reliability of convictions under the Abkari Act.

ORDER

The concurrent verdicts of the Assistant Sessions Court, Kasaragod, and the Additional Sessions Court (Adhoc - II), Kasaragod, in S.C.No.555 of 1999 and Crl.A.No.104 of 2003 respectively, convicting and sentencing the petitioner for the commission of the offence under Section 55 (a) of the Abkari Act , are under challenge in this revision petition.

2. The prosecution case is that on 08.08.1998 at about 4.00 pm, the petitioner was found to have been carrying 70 plastic packets containing 100 ml of arrack each, kept in a plastic sack, while at a pathway in Bandadukka Village. PWs 1 and 2, the Preventive Officers associated with the Bandadukka Excise Range, are said to have intercepted the petitioner, and seized the contraband arrack from him. Samples are said to have been collected on the spot and the petitioner was arrested. After the completion of the investigation, the Excise Inspector of Bandadukka Excise Range, laid the Final Report.

3. In the trial before the learned Assistant Sessions Judge, four witnesses were examined as PWs 1 to 4, and six documents were marked as Exts.P1 to P6. Two material objects were identified and marked as MO1 series and MO2 series respectively. On the basis of the aforesaid evidence, the Trial Court found the petitioner guilty of Section 55 (a) of the Abkari Act , and convicted him thereunder. He was sentenced to Rigorous Imprisonment for six months and fine Rs.1 lakh with a default clause of Rigorous Imprisonment for three months. Though the petitioner challenged the aforesaid verdict in appeal, the learned Additional Sessions Judge, Kasaragod, who considered the appeal, declined to interfere with the findings of the Trial Court. Accordingly, the appeal was dismissed confirming the conviction and sentence. 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. As already stated above, the prosecution relied on the evidence of PWs 1 to 4, and the documents marked as Exts.P1 to P6, in addition to the material objects identified as MO1 series and MO2 series, in support of the charge levelled against the petitioner. Among the above witnesses, PW3, the independent witness, turned hostile. PWs 1 and 2, the Preventive Officers who detected the offence, testified before the Trial Court about the seizure of the contraband arrack from the petitioner. According to them, samples were collected then and there immediately after detection of the offence. Though it is stated in Ext.P2 mahazar that the samples were sealed and taken into custody securely, there is absolutely no indication in the aforesaid mahazar about the sealing process. The seal impression used for securing the custody of the sample bottles is not revealed anywhere in the prosecution records. The property list marked as Ext.P4 does not disclose that the sample bottles were received by the Judicial First Class Magistrate Court concerned after verifying the seal impression and getting convinced that the aforesaid seal impressions tallied with the specimen seal impression provided. So also, it is pertinent to note that Ext.P5 forwarding note does not contain the seal impression of the court, which was made use of for the despatch of the sample bottles to the Chemical Examiner’s Laboratory. Nor does Ext.P5 forwarding note reveal the name and particulars of the Excise Guard concerned, who took the sample bottles to the Chemical Examiner’s Laboratory from the court. The prosecution did not examine the person who carried the sample bottles to the Chemical Examiner’s Laboratory