The appellant was convicted by the Additional Sessions Court (Adhoc)-III, Thrissur, for the offence under Section 58 of the Abkari Act. He was sentenced to undergo simple imprisonment for one year and to pay a fine of `1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for three months. The appellant challenges the conviction and sentence so passed by the court below in this appeal.
2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent.
3. The prosecution case is briefly stated as follows: PW1, the Sub Inspector of Police, Koratti Police Station, and his party were on patrol at Pulani in Meloor Village, at about 11.30 a.m.on 11.10.2000. While so, the appellant was seen standing carrying a plastic bag in his right hand and a glass tumbler in his left hand in the compound of his house on the eastern side of Pulani-Pushpagiri Canal Road. Seeing the police party, the appellant attempted to flee away. But, he was stopped there by the police party. On examining the contents of the plastic bag, five bottles containing 750 ml.each of Indian made foreign liquor were found. Therefore, the appellant was arrested by PW1 at 11.35 a.m. Ext.P3 is the Arrest Memo and Ext.P4 is the Arrest Notice. The five bottles of liquor were numbered 1 to 5. PW1 has taken two samples of 180 ml.each in two 180 ml. bottles from bottle No.1. Similarly, two samples of 180 ml.each were taken from bottle No.5. The samples as well as the five bottles containing liquor were sealed and seized them and the glass tumbler by PW1 under Ext.P1 Seizure Mahazar at 11.40 a.m.on that day. Thereafter, PW1 went to Koratti Police Station with the appellant, contraband items and the records. He has registered Crime No.267 of 2000 of that Police Station. Ext.P2 is the F.I.R. thus drawn by PW1. He has produced the appellant before the court along with the Remand Report, contraband items including samples and the records on 11.10.2000 itself. He has conducted the investigation of the case. He has questioned the witnesses and recorded their statements. He has completed the investigation and submitted the Final Report before the Judicial First Class Magistrate's Court, Chalakudi.
4. The learned Magistrate committed the case to the Court of Session, Thrissur, and, from there, it was made over to the Principal Assistant Sessions Court, Irinjalakuda. Later, it was transferred to the Additional Sessions Court (Adhoc)-III, Thrissur. The court below has framed a charge against the appellant alleging the offence under Section 58 of the Abkari Act. The appellant has pleaded not guilty of the charge. The prosecution examined PWs.1 to 3 and marked Exts.P1 to P10 and Mos.1 to 3 on their side. The appellant was questioned under Section 313 of Cr.P.C. The defence has not adduced any evidence. The court below, after considering the matter, relying on the evidence adduced by the prosecution, found the appellant guilty of the offence under Section 58 of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him.
5. The appellant has raised various contentions challenging the conviction and sentence passed against him. Learned counsel for the appellant submits that the appellant was aged 76 at the time of the alleged occurrence and now he is 90. It is the case of the prosecution that PW1 has seized 3.750 litres of Indian made foreign liquor from the appellant on 11.10.2000. He has drawn two samples of 180 ml.each of the liquor from bottle No. 1 and two similar samples from bottle No. 5. It is noted in Ext.P1 Seizure Mahazar that the samples so drawn in four bottles of 180 ml.size were sealed by PW1. In Ext.P6 List of Property also, PW1 described the samples so produced as sealed. PW2, a Police Constable, who accompanied PW1 at the time of seizure, has deposed also that the samples so drawn were sealed. But, it is not in evidence as to whose or what seal was affixed on the samples.
6. Whether the sample seal of the seal affixed on the samples was provided to the Chemical Examiner? PWs.1 and 2 did not say anything about that. No Forwarding Note has been marked in this case. Therefore, this Court is at a loss to understand whether a sample seal was affixed on the Forwarding Note in which the samples were described. Ext.P9 is the Certificate of Chemical Analysis. It is reported in this document that ethyl alcohol was detected in all the samples. It is also noted that the seals on the bottles were intact and found tallied with the sample seal provided. Such a statement made in Ext.P9 is not an assurance that a sample seal of the seal affixed on the samples was provided for comparison to the Chemical Examiner. In this case, PW1 produced the samples before the court describing them in Ext.P6 List of Property. Those samples were sent to the Chemical Examiner from the court. When such samples are sent to the Chemical Examiner, usually the seal of the court will be affixed and the sample of that seal also will be provided. Whether the sample seal noted in Ext.P9 is the sample seal of the court so provided or not? No answer is forthcoming. Therefore, it cannot be concluded that the comparison effected by the Chemical Examiner was the comparison of the seals affixed by PW1 on the samples with their sample seal provided. Such a conclusion is possible only when it is proved that the sample seal of the seals affixed on the samples was provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the samples taken from the bulk allegedly seized from the appellant in this case.
7. This Court in Rajamma v. State of Kerala (2014 (1) KLT 506) has held as follows :
“.......... The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.”
A Division Bench of this Court in Ravi v. State of Kerala (2011(3) KLT 353) has held that the prosecution can succeed only if it is shown that the contraband liquor which is allegedly seized from the accused ultimately reached the hands of the Chemical Examiner in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. Therefore, in the case on hand, Ext.P9 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to benefit of doubt.
8. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence under Section 58 of the Abkari Act.
9. In the result, the conviction and sentence passed against the appellant are set aside. He is acquitted of the offence under Section 58 of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled.
This appeal is allowed.
ks.
Sd/-
BABU MATHEW P. JOSEPH JUDGE True copy P.S. To Judge