The prosecution must ensure a tamper-proof chain of custody for evidence to maintain conviction validity under the Abkari Act.

ORDER

This criminal revision petition is preferred, impugning the judgment of the learned Additional Sessions Judge (Adhoc)-II, Kollam in Crl. Appeal No.

361/2011.

2. The revision petitioner herein is the sole accused in Crime No. 58 of 2006 of Kollam Excise Range registered for offence punishable under Sections 8 (1) & (2) of the Abkari Act .

3. The prosecution case is that, on 09.08.2006 at about 6.30 a.m., the accused was found in possession of 60 litres of arrack in two plastic cans for the purpose of sale in front of the Sree Mahavishnu Temple, Uppoodu Muri, East Kallada Village.

4. The trial court convicted and sentenced the accused to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,00,000/-, with a default clause to undergo simple imprisonment for six months under Sections 8 (1) and (2) of the Abkari Act . The appellate court confirmed the sentence.

5. Impugning the judgment of the learned Additional Sessions Judge (Adhoc) - II, Kollam, the accused preferred this revision.

6. Before the trial court, PWs. 1 to 5 were examined, Exts.P1 to P9 were marked, and MO-1 was identified. From the side of the defence DWs. 1 and 2 were examined. PWs. 1 and 5 are the independent witnesses to the seizure mahazar, who turned hostile to the prosecution. PW2, the Excise Inspector, Kollam registered the case, prepared Ext.P1 occurrence report and produced the accused before the Court. He identified Ext.P4 property list.

7. PW3 is the Circle Inspector attached to Kollam Excise Enforcement and Anti-Narcotic Special Squad. He, along with the Excise Party, while conducting patrolling, found the accused was trying to hide a plastic can under a bush situated in front of the Mahavishnu Temple, Uppoodu Muri and the said plastic can contained 30 litres of arrack. On further examination of the scene, another plastic can containing 30 litres of arrack was recovered from the nearby bushes. PW3 thereafter arrested the accused and prepared Ext. P5 mahazar. He also identified MO-1 and the photographs of the thondi articles. PW4, the Excise Guard who accompanied PW3 at the relevant time, corroborated and reiterated the version of PW3. 8. After the submission of the final report, the case was committed to the Sessions Court, Kollam. The learned Sessions Judge thereafter made over the case to the Additional Assistant Sessions Court, Kollam for trial and disposal. On the side of the prosecution, PWs.1 to 5 were examined. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure.

9. Heard Sri. M.T. Suresh Kumar, the learned counsel for the revision petitioner and Smt. Maya M. N., the learned Public Prosecutor.

10. The learned Public Prosecutor submitted that the impugned order is legally sustainable and no interference, whatsoever, is warranted in this matter. He further submitted that the prosecution has succeeded in alleging and proving the charge against the revision petitioner.

11. Per contra, the learned counsel for the revision petitioner submitted that the impugned order is illegal, irregular and improper. Both the trial court and the appellate court had failed to note the illegalities and improprieties in this case.

12. The learned counsel for the revision petitioner would submit that in Ext.P3, forwarding note (chemical requisition), the name of the guard has been left blank. The absence of the name of the guard who transported the sample to the Chemical Analyst is fatal to the prosecution case, as it fails to establish the tamper-proof despatch of the sample to the laboratory.

13. The