Appellant challenges the conviction imposed for an offence under Section 55(a) and (i) of the Abkari Act by the learned Additional Sessions Judge (Abkari Cases), Kottarakkara in Sessions Case No.767/2001. It is alleged that on 12-08-1998 at about 6.20 p.m., two accused persons in furtherance of their common intention to sell illicit arrack were found in possession of about 8 litres of arrack in a 10 litre black jerry can. The appellant (second accused) was found in possession of a glass tumbler and he was sitting along with the first accused. On seeing the Police Officers, the first accused threw away the can and escaped. The second accused was apprehended by PW3. After preparing relevant documents, the appellant was arrested and he was produced before the court. At the time of trial, prosecution examined four witnesses and marked five documents. Two defence witnesses were examined by the appellant. MO's 1 and 2 are the material objects.
2. Heard the learned counsel for the appellant and the learned Public Prosecutor.
3. Learned counsel for the appellant submitted that there is no evidence to find that the appellant possessed illicit arrack as alleged by the prosecution. Further, there is not even any trace of evidence to find that he was indulging in sale at the time of the alleged detection. Learned counsel for the appellant further contended that there is no forwarding note or requisition for sending the sample for chemical analysis produced and proved by the prosecution. That apart, there was 70 days of delay in producing the contraband and the explanation offered by PW3 for delay cannot be legally accepted.
4. PW1 is an independent witness. He proved his signature on Ext.P1 mahazar. PW's 2 and 3 are the police officers. PW2 is a police constable, who was in the party of PW1 at the time of detection of offence . These witnesses deposed that on 12-08-1998 in the evening they were on patrol duty. When they reached at the place of detection at about 6.20 p.m, they found the accused persons with all preparedness for selling illicit arrack. On seeing the police officers, the first accused took to his heels after abandoning the jerry can containing illicit arrack. Second accused, though attempted to escape, was apprehended. At that time, he was holding a glass tumbler. Prosecution case is that both these accused persons were waiting for customers to buy illicit arrack. PW3 deposed that the first accused is a well known bootlegger in that area. After recovering the can and examining its contents, it was revealed that they were possessing illicit arrack. The second accused/appellant was arrested. Ext.P1 is the mahazar prepared from the place of occurrence. Ext.P2 is the first information report. The arrest memo evidencing arrest of the appellant is Ext.P3. Ext.P4 is the property list. Even though the detection was on 12-08-1998, the property was produced before the court only on 22-10-1998. That is evident from the endorsement by the learned Magistrate on Ext.P4. According to PW3, the property could not be produced before the court in time as the court directed police to produce it later because of the pressure of work experienced by the court. However, there is no document to show that fact and also that it was returned for keeping in the safe custody of the Investigating Officer. Learned counsel for the appellant further contended that the possibility of tampering with the samples cannot be ruled out. In answer to this argument, learned Public Prosecutor took me through paragraph 20 of the judgment, wherein the learned Additional Sessions Judge considered the issue. According to the reasoning of the learned Additional Sessions Judge, there was no reason to disbelieve PW3 that he was keeping the property in safe custody until it was produced later before the court. It is pertinent to note that no document is produced to establish this fact except the ipse dixit of the detecting officer. Had the officer produced the articles before the court immediately after detection, the court would have authorized him to keep it in custody until further directions were issued to produce it. In the absence of any document to show that he was authorized to keep the contraband in his possession until directed by the court, I am of the view that the oral evidence alone cannot be accepted to find that it was properly kept in the custody of the Investigating Officer. Further, he could have produced some document to show that it was in his custody at the material time. In the absence of this vital evidence, I am of the view that the accused is entitled to raise a challenge regarding the safe custody of the contraband article.
5. It is trite that the prosecution is duty bound to establish that the chemical examiner analyzed the sample drawn from the contraband recovered from the possession of the accused. For proving that, the forwarding note and requisition for chemical analysis are essential. None of these documents are produced in this case. Therefore, the totality of evidence in this case will show that the law laid down by this Court in Ravi v. State of Kerala and Another (2011(3) K.L.T 353) has been violated. Therefore, the accused/appellant is entitled to get the benefit of doubt.
In the result, the appeal is allowed. Conviction of the appellant for offence under Section 55(a) and (i) of the Abkari Act awarded by the learned Additional Sessions Judge (Abkari Cases), Kottarakkara in Sessions Case No.767/2001 is hereby set aside. The appellant shall be set free forthwith, if not wanted in any other case. His bail bond shall stand cancelled.
All pending interlocutory applications will stand dismissed.
Sd/- A.HARIPRASAD, amk JUDGE.
//True copy// P.A to Judge