In Abkari prosecutions, the failure to establish a tamper-proof link for the seized contraband, specifically regarding sample sealing and the identity of the officer transporting the specimen to the laboratory, constitutes a fatal flaw preventing a conviction.

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, Vatakara as per the judgment dated 18.02.2008 in S.C. No.115/2006, which was confirmed partly in appeal by the Additional Sessions Court, Vatakara, as per judgment dated 05.05.2011 in Crl. Appeal No.258/2008. The revision petitioner is the sole accused in the said case.

2. The prosecution case is that, on 06.07.2004 at about 6.30 p.m., the accused was found possessing 2 litres of arrack in a can of 5 litres capacity, in contravention of the provisions of the Abkari Act. Thus, the accused is alleged to have committed the offence punishable under Section 55(a) of the Abkari Act.

3. Before the trial court, initially, the charge was framed against the accused under Section 55(a) of the Abkari Act. Thereafter, the charge was altered to Section 8(2) r/w 8(1) of the Abkari Act.

4. During trial, from the side of the prosecution, PW1 to PW8 were examined and marked Exts.P1 to P9. 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 it was not a fit case to acquit the accused under Section 232 of Cr.P.C, the accused was directed to enter on his defence and to adduce any evidence that he may have in support thereof. On the defence side, DW1 was examined. However, the defence produced no documentary evidence.

5. Finally, 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 he was convicted. The accused was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- for the offence for which he was found guilty. In default of payment of fine, the accused was ordered to undergo rigorous imprisonment for a further period of six months.

6. Aggrieved by the said judgment, the accused preferred Criminal Appeal No. 258/2028 before the Sessions Court, Kozhikode. The learned Additional Sessions Judge, Vatakara, upon hearing the appeal, confirmed the conviction; however, the sentence was modified to rigorous imprisonment for one year and to pay a fine of Rs. 1,00,000/-. Aggrieved thereby, the accused has preferred the present revision petition.

7. Heard Sri. Zubair Pulikool, learned counsel for the revision petitioner and Smt. Anima M., the learned Public Prosecutor, and also perused the records.

8. The learned counsel for the revision petitioner submitted that the revision petitioner is wholly innocent of the allegations levelled against him and that both the trial court and the appellate court failed to appreciate the evidence in its proper perspective. According to the learned counsel, the revision petitioner has absolutely no connection with the contraband allegedly seized in the case and has been falsely implicated based on mere surmises and conjectures. It was further contended that the procedures relating to seizure and sampling were not carried out in a foolproof and tamper-proof manner, thereby leaving room for possible tampering. Likewise, it was further pointed out that in the forwarding note which is marked as Ext.P7, the name of the excise guard with whom the sample was entrusted for producing before the chemical examiner is not provided. Therefore, there is no link to show that till the sample reached the hands of the chemical examiner, the same was in sa