Conviction under Abkari Act set aside due to unexplained delays and lack of proof of tamper-proof sample chain of custody.

ORDER

The petitioner is the accused in SC No.404 of 2007 on the files of the Asst.Sessions Court, Kattappana. The learned Asst. Sessions Judge convicted the petitioner for the commission of offences under Sections 8 (1) and 8(2), and Section 55 (g) of the Abkari Act . He was sentenced to Simple Imprisonment for two years and fine Rs.1 lakh with a default clause of Simple Imprisonment for six months. In the appeal, the learned Additional Sessions Court (Adhoc I) Thodupuzha, confirmed the conviction, but reduced the sentence to Simple Imprisonment for one year with fine Rs.1 lakh. The default clause of Simple Imprisonment was reduced to one month. Aggrieved by the aforesaid verdicts of the courts below, the petitioner is here before this Court with this revision petition.

2. Since the learned counsel for the revision petitioner reported no instructions, notice was issued to the revision petitioner. Still the revision petitioner did not choose to appear or to advance any arguments. In the above circumstances, Adv.Mr.Aaron Zacharias Benny was appointed as Amicus Curiae to represent the revision petitioner.

3. Heard the learned Amicus Curiae representing the revision petitioner and the learned Public Prosecutor representing the State of Kerala.

4. The prosecution case is that in a search conducted by PW5, the Sub Inspector of Police, Upputhara Police Station, and his team, at the residence of the petitioner at about 3 pm on 15.02.2002, 150 litres of wash and 5 litres of arrack were seized. PW5 and his team are said to have collected samples of the contraband items and proceeded with the investigation. After completion of the investigation, Final Report was filed in respect of the commission of offences under Sections 55 (a) & 55(g) and Sections 8 (1) and 8(2) of the Abkari Act .

5. The prosecution examined 6 witnesses as PW1 to PW6, and brought on record 12 documents as Exts.P1 to P12 before the Trial Court. MO1 to MO8 were identified as material objects. Two third party documents were marked as Exts.X1 and X2. From the part of the petitioner, two witnesses were examined as DW1 and DW2, and one document was marked as Ext.D1. It is after analysing the aforesaid evidence that the learned Asst.Sessions Judge came to the conclusion that the petitioner committed offences punishable under Sections 8 (1), 8(2) and 55(g) of the Abkari Act . The Appellate Court made a reappraisal of the aforesaid evidence and confirmed the conviction recorded by the Trial Court. However, the sentence awarded was modified as mentioned in paragraph No.1 above.

6. The learned Amicus Curiae pointed out that the prosecution is vitiated due to the inordinate delay on the part of the Investigating Agency in forwarding the sample bottles to the Court, and also the delay which occasioned in sending the sample bottles from the Court to the Chemical Examiner’s Laboratory. Ext.P6 property list would reveal that the contraband items, including the sample bottles, were produced before the Magistrate concerned after one month from the date of detection of the offence. There is no explanation offered by the prosecution for the inordinate delay in the above regard. So also, Ext.P9 chemical examination report would reveal that the sample bottles which were despatched from the Judicial First Class Magistrate Court, Kattappana on 26.04.2005, reached the Chemical Examiner’s Laboratory only on 28.04.2005. The prosecution is not in a position to explain the custody of the above sample bottle during the intervening period of two days between 26.04.2005 and 28.04.2005. The Police Officer or the Excise Officer, who carried the sample bottle from the Court to the Chemical Examiner’s Laboratory, has not been examined as a witness from the part of the prosecution. So also, it is