T.R. Ravi, J.:— The accused in S.C. No. 637/2004 on the file of the Additional Sessions Court (Adhoc) II, Kasaragod has filed this appeal being aggrieved by the judgment dated 16.10.2007, whereby he has been found guilty of offence under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to undergo simple imprisonment for a further period of 6 months.
2. The case of the prosecution is that on 11.04.2004 at 6.00 p.m., the accused was found possessing and transporting 60 packets of Karnataka made illicit arrack, each having a capacity of 100 ml. The sample was collected at the scene of occurrence and the properties were forwarded to the court on the same day. Before the court below, PW1 to PW5 were examined on the side of the prosecution and Exts.P1 to P7 were marked. On the basis of the evidence on record, the court below found the appellant guilty of offence charged against him and imposed on him the sentence referred above.
3. Even though several contentions have been raised in the memorandum of appeal, on going through the records, I find that there are serious discrepancies in the prosecution case. Ext.P4 property list would show that the material objects relating to the crime had been received on 12.04.2004, the next day of the alleged offence. It is seen that the properties were returned to the Excise Inspector, Badiadka for safe custody. However, it is not clear from the endorsement as to on which day, the properties were returned. Ext.P5 which has been produced as the forwarding note appears to have been prepared on 11.04.2004 itself. However, there is no endorsement regarding the date of receipt of the forwarding note in the Court of the Magistrate. A counter signature of the Magistrate is available but there is no date written below to indicate the date on which the Magistrate had counter signed. There is nothing in the document to indicate the date on which the sample was forwarded to the Chemical Examiner. At the same time, Ext.P6, which is the report of the Chemical Examiner, would show that the sample was received by the Examiner along with the reference letter dated 18.04.2003 from the Judicial First Class Magistrate, Kasaragod through the Excise Guard, K.P. Hashim. However, it is stated that the said samples were received only on 16.05.2004, one month after the reference letter. There is no evidence forthcoming regarding the safe custody of the contraband articles and the sample which is said to have been collected at the spot of occurrence, between 12.04.2004 and 16.05.2004. In the absence of any evidence regarding the safe custody during this period and in the absence of any indication in the forwarding note regarding the despatch of the sample to the Chemical Examiner, the only conclusion possible is that the prosecution has failed to prove beyond any reasonable doubt that the very same sample which was collected at the scene of occurrence had reached the Chemical Examiner in tamper proof condition. [see P. Kumaran v. State Of Kerala ((2016) 4 KLT 718)]. In the above circumstances, the appellant is entitled to succeed in this appeal.
4. In the result, the judgment dated 16.10.2007 in S.C. No. 637/2004 on the file of the Additional Sessions Court (Adhoc-II), Kasargod is set aside. The appellant is acquitted and set at liberty. The bail bonds, if any, executed by the appellant or on his behalf are cancelled. The appeal stands allowed.