Gopunni @ Gopalakrishnan vs State Of Kerala

Dr. Kauser Edappagath, J

This is an appeal filed by the accused in S.C.No.896 of 2007 on the files of the Additional Sessions Judge, Thrissur (Fast Track Court No.II Adhoc) (for short 'the court below') against the judgment dated 04.04.2009 convicting him under Sections 8(1) and 8(2) of the Abkari Act.

The prosecution case in short is that on 22.02.2006 at 05.30 p.m., the accused was found in possession of 1 ½ litres of illicit arrack in contravention of the Abkari Act and Rules and thereby committed the offence.

On receipt of summons, the accused appeared at the court below. After hearing both sides, the court below framed charge against the accused under Sections 8(1) and 8(2) of the Abkari Act. He pleaded not guilty. On the side of the prosecution, PWs 1 to 5 were examined and Exts.P1 to P14 were marked. MOs.1 and 2 were identified. After trial, the court below found the accused guilty under Sections 8(1) and 8(2) of the Abkari Act and he was sentenced to undergo simple imprisonment for 1 year and to pay a fine of Rs.1,00,000/-, in default to suffer simple imprisonment for 1 month. The said conviction and sentence are under challenge in this appeal.

I have heard Sri.P.Vijaya Bhanu, the learned Senior counsel for the appellant and Smt.Rekha S., the learned Senior Public Prosecutor.

The learned counsel for the appellant submitted that Ext.P5 seizure mahazar does not contain any seal and in the absence of the said seal, it cannot be conclusively held that the very same sample which was drawn from the contraband seized from the accused had reached the chemical analyst's laboratory in a tamper proof condition. I find some force in the argument.

This Court in K.Bhaskaran v. State of Kerala [2020 (5) KLT Online 1057] has held that the specimen seal should be provided in the seizure mahazar so as to enable the court to satisfy the genuineness of the sample produced in the court. It was also observed in the said judgment that the nature of the seal used shall be mentioned in the seizure mahazar. A perusal of Ext.P5 mahazar would show that it does not contain the sample seal or the description of the seal used. In the absence of seal in the seizure mahazar, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of occurrence had reached the chemical examiner for analysis in a tamper proof condition. This vital aspect was not taken into consideration by the court below while appreciating the prosecution case. Hence, I am of the view that the conviction and sentence passed by the court below cannot be sustained.

In the result, the criminal appeal stands allowed. The conviction and sentence passed by the court below vide the impugned judgment are set aside. The appellant/accused is found not guilty of the offence charged against him and accordingly he is acquitted. His bail bond is cancelled.