The failure to strictly comply with the mandatory procedure under Section 53A of the Abkari Act, particularly the lack of Magisterial certification for the inventory of destroyed contraband, renders the seizure doubtful and entitles the accused to the benefit of doubt and acquittal.

ORDER

This criminal revision petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure, challenging the judgment of conviction and the order of sentence passed against the revision petitioner for the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act by the Assistant Sessions Court, Hosdurg, as per judgment dated 31.10.2015 in S.C. No.97/2011, which was subsequently confirmed in appeal by the Sessions Court, Kasaragod, by judgment dated 27.02.2017 in Crl. Appeal No.275/2015. The revision petitioner is the sole accused in the said case.

2. The prosecution case, in brief, is that on 26.09.2009, at about 2.30 p.m., the accused was found in possession of 4 litres of illicit arrack in contravention of the provisions of the Abkari Act and thereby committed the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act.

3. During trial, the prosecution examined PW1 to PW3 and marked Exts.P1 to P12. After the closure of the prosecution evidence, the accused was questioned under Section 313 of the Cr.P.C., during which he denied all the incriminating circumstances brought out against him in evidence. As the court found that it was not a fit case for acquittal under Section 232 of the Cr.P.C., the accused was called upon to enter upon his defence and adduce evidence, if any, in support thereof. However, no defence evidence was adduced.

4. After hearing both sides, the learned Assistant Sessions Judge found the accused guilty of the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act and convicted him accordingly. The accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he was directed to undergo rigorous imprisonment for a further period of six months.

5. Aggrieved by the conviction and sentence, the accused preferred Criminal Appeal No.275/2015 before the Sessions Court, Kasaragod. The learned Sessions Judge, upon hearing the appeal, confirmed the findings and sentence passed by the trial court. Impugning the said judgment, the accused has filed this revision petition.

6. Heard Sri. K. P. Harish, the learned counsel appearing for the revision petitioner, and Sri. G. Sudheer, the learned Public Prosecutor. The records were also perused.

7. The learned counsel for the revision petitioner contended that both the trial court and the appellate court failed to appreciate the facts and evidence on record properly and proceeded to convict the accused mechanically. According to the learned counsel, the procedures relating to search, seizure, and sampling were not carried out in strict compliance with law and such procedural lapses themselves are sufficient to vitiate the prosecution case. It was further submitted that, although the residue of the arrack, after drawing the sample, was allegedly disposed of upon preparation of an inventory, the correctness of the said inventory was not properly certified by the Magistrate, thereby rendering the prosecution case doubtful.

8. Per contra, the learned Public Prosecutor submitted that the procedures relating to seizure, sampling, and sealing were carried out scrupulously and that there is no room for any doubt or suspicion regarding the identity of the contraband seized or the sample that ultimately reached the chemical examiner. According to the learned Public Prosecutor, sufficient link evidence has been adduced to establish the chain of custody of the sample and, therefore, no interference with the concurrent findings of the trial court and the appellat