Accused in S.C.No.954 of 2000 was tried and convicted by the learned Additional Sessions Judge for an offence under Section 55(a) read with Section 8(1) and (2) of the Abkari Act (in short, “the Act”).
2. Heard the learned counsel for the appellant and the learned Public Prosecutor.
3. Prosecution case, in brief, is that on 07.09.1997 at about 5.20 p.m., the appellant was found in possession of five litres of illicit arrack in MO1 can having a capacity of five litres and at that time, she was standing by the side of a road.
4. Court below examined five witnesses and marked six documents on the side of the prosecution. MO1 is the material object. There was no defence evidence.
5. PW1 is the detecting officer. He was the Excise Inspector at the material time. According to him on 07.09.1997, while on patrol duty, he found the accused at about 5.20 p.m. standing by the side of a road with a can in hand. On seeing the Excise Officers, she was perplexed. On account of the suspicion evoked, PW1 approached her and questioned.
On questioning, it was revealed that she carried five litres of illicit arrack in the can. She was arrested from the place of detection and Ext.P1 mahazar was prepared. The articles and the accused were removed to the Excise Office and, on the next day, she was produced before the court along with the articles.
6. PWs 2 and 3 independent witnesses cited to prove the detection turned hostile. Another witness relied on by the prosecution is PW4.
7. Learned counsel for the appellant submitted that there is no material on record to show that the contraband was produced before the court without delay. Along with the occurrence report, a report is seen filed by the Excise Inspector stating that MO1 can with contents was produced before the court on 08.09.1997. But, the endorsement thereon made by the learned Magistrate on 11.09.1997 would show that the articles were handed over back to the Excise Inspector for producing it as and when directed. It is not clear as to when the articles were produced thereafter. None of the material prosecution witnesses deposed about the subsequent production of the articles before the court for drawing sample to be sent for analysis. It is interesting to note that property list or forwarding list was not produced and marked at the time of trial. Neither PW1 nor PW4 deposed that the contraband articles returned by the learned Magistrate on 11.09.1997 were kept by them in safe custody and they remained in tamper proof condition until it was produced before the court for taking sample. That apart, there is no material to show that the sample was properly taken from the court and that too when it was taken. Ext.P6 is the chemical analysis report, which shows that the article was given a thondi list number dated 22.09.1997. It further shows that the sample drawn in the case was sent through an Excise Guard and it reached the Chemical Examiner's Laboratory only on 25.09.1997. It is contended by the learned counsel for the appellant that inordinate delay in producing the articles before the court and producing the sample before the Chemical Examiner's Laboratory has not been properly explained. The chance of mixing up the sample or tampering with it cannot be ruled out. It is settled law in Ravi v. State of Kerala (2011 (3) KLT 353) that it is the bounden duty of the prosecution to show that the contraband recovered from the possession of the accused ultimately reached the Chemical Examiner's Laboratory and that was the one analysed for making out an offence under the Act. In the absence of any satisfactory evidence regarding the fact that the sample was properly handled throughout, I find that the conviction of the appellant is not justified. For that reason, therefore, I interfere with the conviction awarded by the trial court.
In the result, appeal is allowed. Conviction of the appellant in S.C.No.954 of 2000 on the file of the Additional Sessions Court, Fast Track No.I, Thiruvananthapuram is hereby set aside. Appellant shall be set free, if not wanted in any other case. Her bail bonds are cancelled. If the appellant had deposited any amount at the time of suspending the sentence, it shall be refunded to her.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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