Abkari Act | Tamper-Proof Despatch Of Sample Must; Lack Of Specimen Seal, Not Examining Persons Handling Samples Fatal: Kerala High Court

The Kerala High Court on Tuesday laid down that the absence of specimen seal in the mahazar and forwarding note, non-mentioning of the name of the Excise Guard in the forwarding note, non-examination of the clerk who despatched the sample or the Excise Guard who took the sample to the lab, and so on are serious laches which would be fatal to the prosecution in a case under the Abkari Act.

"Absence of proper impression of specimen seal in the mahazar and absence of sample seal in the forwarding note etc. are circumstances to doubt the identity of the sample seized and the sample sent for chemical analysis. Prosecution is duty bound to prove that there was tamper proof despatch of the sample, to show that the sample taken from the contraband seized from the accused, was the sample which reached the hands of the chemical examiner, Justice Sophy Thomas explained.

The prosecution case was that the 1st accused/revision petitioner was carrying a 5 litre black can containing 4.5 litres of illicit arrack, with the 2nd accused following him. The excise party apprehended the revision petitioner, while the 2nd accused managed to escape. Although both accused persons were charged with the offences under Sections 8(1) and (2) of the Abkari Act ('Prohibition of manufacture, import, export, transport, transit, possession, storage, sales, etc., of arrack'). As the 2nd accused was absconding, his case was split-up and refiled by the Trial Court. 

The trial court found the revision petitioner guilty of the charges levelled against him, and he was convicted and sentenced to undergo rigorous imprisonment for three years and fine of Rs.1 Lakh. The Appellate Court upheld the conviction and sentence. It is challenging the these orders that the present revision petition was filed. 

Advocate M.T. Sureshkumar averred on behalf of the revision petitioner that no sample seal had been affixed on the seizure mahazar, and that if at all it had been so fixed, the nature of the seal was not mentioned anywhere. The said aspect was however disputed by Public Prosecutor M.C. Ashi. 

The Court, on verifying the seizure mahazar, found that a seal-like impression was found inside the writings and that the abbreviation found in the seal was not legible. 

It further discerned that the specimen seal found inside the writings in the mahazar that was affixed by the detecting officer was neither legible, nor did it start with the initials of the officer's name. 

"Since the specimen seal is not properly affixed, and the nature of seal is not mentioned in the mahazar, we have to take it as a case of no seal affixed in the mahazar. In the mahazar, the Excise Inspector has not affixed his signature towards his designation seal. That also casts serious doubt regarding the genuineness of the seizure mahazar," the Court observed. 

It further noted that although specific space had been provided in the forwarding note for affixing the sample seal, which was sufficient for affixing the same, the detecting officer was bound to do so, or provide sufficient reason for his failure to do the same. However, neither of the same were found to be done herein. 

It thus held that absence of proper explanation for not affixing the sample seal in the space provided in the forwarding note was as good as non-affixture of the sample seal in the forwarding note. The Court thus held that the prosecution had failed to prove that tamper proof despatch of the sample, due to which it could not be said that link evidence had been established. 

Additionally, it was also noted that the Excise Guard who brought the sample for analysis to the chemical examiner's lab, as well as the thondi clerk who despatched the sample and entrusted the same with the Excise Guard, were not examined by the prosecution.

"So, it has to be held that, prosecution failed to prove its case beyond any shadow of doubt, and so, the revision petitioner is liable to be acquitted of the offences alleged under Sections 8(1) and 8(2) of the Abkari Act," the Court held, while acquitting the revision petitioner of the offences levelled against him. 

Citation: 2023 LiveLaw (Ker) 641

Case Title: Shijo Das v. State of Kerala 

Case Number: Crl. Rev. Pet. No. 1287 OF 2014

Click Here To Read/Download The Order