Point of Law: Contraband - Absence of any link evidence to show that very same sample which drawn from contraband article allegedly seized from possession of accused reached hands of chemical examiner, it is unsafe to convict the accused.

ORDER :

1. The revision petitioners are the accused Nos.1 and 2 in S.C No.755/2003 on the file of the Additional Assistant Sessions Judge, Thalassery and the appellant in Crl. Appeal No.287/2007 on the files of the Additional Sessions Court – I, Thalassery. The offence alleged against the accused is punishable under Section 58 of the Abkari Act, 1077 (hereinafter referred to as “the Act”).

2. The prosecution allegation in brief is that, on 15.06.2000 at 19.45 hours, the accused Nos.1 and 2 were found illegally transporting 700 liters of spirit in 21 plastic cans in Maruti vans bearing registration numbers TCV/7591 and BLB/2276 in front of the Lavanaya Engineering Works, Keezhur Amsom, Payancherimukku. Thus the accused Nos.1 and 2 are alleged to have committed the aforesaid offence.

3. On the appearance of the accused Nos.1 and 2, this trial come framed charge against the accused Nos.1 and 2 under Section 55 (a) of the Act. During the trial of the case, PW1 to PW6 were examined and marked Exts.P1 to P9. On closing the evidence of the prosecution, the accused were questioned under Section 313 (1) (b) of the Cr.P.C. They denied all the incriminating circumstances appearing in the evidence. When they were called upon to enter on their defence, no defence evidence was adduced.

4. On appreciation of the evidence, the trial court found accused Nos.1 and 2 guilty, convicted them and sentenced to undergo rigorous imprisonment for three years each and to pay a fine of Rs.1,00,000/-each for the offence punishable under Section 55 (a) of the Act and in default of payment of fine to undergo simple imprisonment for two years each. The appellate court partly allowed the appeal confirming the sentence and reducing the substantive sentence to rigorous imprisonment for two years each by sustaining the remaining part of the sentence. Feeling aggrieved, the revision petitioners are before this Court.

5. Heard Sri. C. P. Peethambaran, learned counsel for the revision petitioners and Sri. M. S Breez, learned Senior Public Prosecutor.

6. The learned counsel for the revision petitioners contended that the occurrence took place within the jurisdiction of Iritty Police Station and PW6, who was admittedly the Sub Inspector of the Police, Karikkottakary, conducted investigation in this case contrary to the provisions contained under Section 70 of the Act. Elaborating on the submission, the learned counsel for the revision petitioners contended that CW16, the Sub Inspector of Police, Iritty who filed the final report was not examined as a witness for the prosecution. It was further contended that PW4, the Detecting Officer did not sample the contraband in accordance with law. It was submitted that the specimen impression of the seal was not produced before the trial court to ensure a safe sampling procedure from the beginning to the end for comparison by the court. Added to this, the learned counsel for the revision petitioners contended that no sample seal was affixed in Ext.P1 seizure mahazar to prove the genuineness of the sampling alleged to have been done by PW4 in the presence of the witnesses. Thus it was argued that the link with the accused and the contraband were not proved against the accused highlighting the fact that no evidence was adduced to establish the ownership of the vehicles which carried the contraband article.

7. Per contra, the learned Senior Public Prosecutor contended that both the trial court and the appellate court concurrently held that the accused were found transporting 700 litres of spirit in 21 plastic cans in Maruti vans bearing registration numbers TCV/7591 and BLB/2276 contrary to the provisions contained under the Act and Rules framed thereunder. The learned Senior Public Prosecutor further submitted that concurrent findings of conviction and sentence are sought to be set aside in revision. Thus, it was argued that unless the findings are manifestly perverse or contrary to the evidence on record, it would not be just and prop