The prosecution must establish the chain of custody of seized items; failure leads to doubt and necessitates proper statutory application.

JUDGMENT

This appeal is preferred against the judgment of conviction and sentence dated 9.3.2005 made in S.C.No.18/2004 on the file of the Court of Additional Sessions Fast Track Court No.I, Palakkad. The conviction is under Section 55 (a) of the Abkari Act . The allegation is that the appellant was found in possession of 16 bottles of Indian Made Foreign Liquor.

2. When the appeal came up for hearing, the learned counsel for the appellant submitted before this court that here is a case where the prosecution failed to prove that untampered property reached before the court and no property list marked during the proceeding. As per the dictum laid down by this Court in Raju v. State of Kerala ( 2012 KHC 877), it is mandatory on the side of the prosecution to produce seized article forthwith and further produce evidence in this regard. It is lacking in this case. Then it can be only said that there is non production of seized articles forthwith. When there is unmaking of the document, an adverse interference can be drawn and the benefit of doubt can be extended to the appellant.

3. The second aspect submitted before this court is that as per paragraph 17 of the judgment, the trial court came to a conclusion that “ I am of the opinion that the act of the accused in carrying 12 litres ( 16 x 750 ml) of Indian Made Foreign Liquor in his possession is an offence u/s 55(a) since the quantity found in his possession contravenes the limit prescribed in the early mentioned order made by the Government under the provisions of Abkari Act ”.

4. It is submitted before this court that the limit is prescribed under Section 15 of the Abkari Act . The contravention is in respect of rules. Then by virtue of Section 63 of the Act, surely, it will not come under Section 55 (a), but only under Section 63 of the . 5. I perused the evidence in this case. It is seen that the property list is in the file, but not marked. An unmarked document cannot be looked into.

6. After considering the totality of the case and as the definite case of the prosecution is that possession of 12 litres of IMFL and when there is no total prohibition in our State, it can be only held that it is a case which will come under the violation of Section 15 of the Abkari Act which will be punishable only under Section 63 of the .

7. Thus, the conviction under Section 55 (a) of the Abkari Act is hereby set aside and the appellant is convicted under Section 15 read with Section 63 of the and sentenced to pay a fine of Rs.2,000/- with default simple imprisonment for 15 days.

With the above modification on the side of sentence side, this appeal is allowed.

K.P.JYOTHINDRANATH JUDGE sv.