Court’s Decision
In a strongly worded judgment, the Kerala High Court, presided over by Justice Johnson John, set aside the conviction and sentence of two accused who had been sentenced to four years of rigorous imprisonment and a fine of ₹1,00,000 each under Section 8(2) of the Abkari Act, holding that the prosecution failed to comply with statutory safeguards, particularly Sections 38 and 53A of the Abkari Act, and failed to establish a tamper-proof chain of custody of the seized liquor samples.
The Court observed:
“Where the prosecution fails to prove that the sample analyzed was the very same one seized from the accused, the entire case collapses. The benefit of reasonable doubt must then follow.”
The appeal was allowed, and both accused were acquitted.
Facts
The case originated from an alleged seizure of 3000 packets of illicit arrack (each 100 ml) found in six plastic sacks inside an autorickshaw at Mukkarikandam on 2 October 2006. The Sub-Inspector of Kumbla Police Station claimed to have intercepted the vehicle at around 8:15 p.m., arresting the driver and passenger, and subsequently registered a case under the Abkari Act.
The trial court convicted both accused based solely on the testimony of the detecting officers (PW1 and PW6) and the chemical examiner’s report indicating the presence of ethyl alcohol. The accused, however, challenged the conviction, alleging procedural violations and tampering concerns.
Issues
- Whether the prosecution complied with the mandatory provisions of Sections 38 and 53A of the Abkari Act governing seizure, sampling, and custody of contraband.
- Whether the prosecution successfully proved a fool-proof chain of custody to link the seized substance to the sample analyzed by the chemical examiner.
- Whether the absence of independent witnesses and procedural lapses vitiated the prosecution’s case.
Petitioner’s Arguments
The appellants contended that the prosecution case was riddled with serious procedural defects. They emphasized that PWs 2 and 3, the independent witnesses, had turned hostile, and the seizure mahazar (Exhibit P2) and property list (Exhibit P7) did not contain the specimen seal impression—a crucial safeguard under Section 53A of the Abkari Act.
They argued that the samples were allegedly drawn and sealed by the Sub-Inspector but without the presence or certification of a Magistrate, as mandated under Section 53A(2)(c). Furthermore, there was a 23-day delay between seizure (2 October 2006) and production of the sample in the Chemical Examiner’s Laboratory (26 October 2006). No explanation was offered, and the property clerk or constable who handled the sample was not examined.
Citing precedents such as Andikutty v. State of Kerala (2023 KHC 777), Antony v. State of Kerala (2024 KHC OnLine 1082), and Bhaskaran K. v. State of Kerala (2020 KHC 5296), counsel argued that non-compliance with these mandatory procedures destroys the evidentiary chain, entitling the accused to acquittal.
Respondent’s Arguments
The learned Public Prosecutor maintained that the detection and seizure were properly conducted and corroborated by PW1 (police constable) and PW6 (Sub-Inspector). The chemical analysis report (Exhibit P5), which confirmed the presence of ethyl alcohol, was said to establish the offence conclusively.
The prosecution asserted that minor procedural lapses cannot vitiate the conviction when the substance seized and analyzed was proven to be intoxicating liquor. It was argued that the credibility of official witnesses should not be doubted merely because independent witnesses turned hostile.
Analysis of the Law
The Court conducted an exhaustive analysis of the Abkari Act, particularly Section 53A, which governs the disposal, sampling, and evidentiary certification of seized liquor. The Court emphasized that the provision was introduced to prevent tampering and substitution of samples.
Section 53A(2)(c) mandates that representative samples must be drawn in the presence of a Magistrate, and the Magistrate must certify the correctness of the inventory, photographs, and list of samples. Failure to comply with this requirement, the Court said, vitiates the entire prosecution case.
The Court noted that the prosecution had not shown that the sample was drawn in the presence of a Magistrate, nor that a specimen seal was affixed on the seizure mahazar or property list. This omission was fatal.
Similarly, Section 38 requires every Abkari officer to give immediate information to a superior officer or Inspector about the seizure. The Court found no evidence that PW6, the detecting officer, had complied with this requirement.
Precedent Analysis
- Andikutty v. State of Kerala (2023 KHC 777) – The Kerala High Court held that failure to comply with Section 53A in its letter and spirit vitiates the entire prosecution, as it safeguards against tampering and substitution.
Applied here to invalidate the prosecution’s process of sampling. - Vijayan @ Puthoor Vijayan v. State of Kerala (2021 (5) KHC 347) – Laid down a comprehensive checklist of procedures for officers collecting and forwarding samples to ensure transparency and prevent tampering.
Referenced by the Court to highlight missing safeguards such as the specimen seal and unverified chain of custody. - Antony v. State of Kerala (2024 KHC OnLine 1082) – Held that the prosecution must prove the chain of custody from seizure to chemical analysis and examine every official who handled the sample.
Used to establish that the prosecution failed to examine key custodians in this case. - Rajamma v. State of Kerala (2014 (1) KLT 506) – Declared that if the specimen seal is not produced and verified by the Chemical Examiner, the analysis report loses evidentiary value.
Relied upon to discount the probative value of the chemical analysis report (Exhibit P5). - Vijay Pandey v. State of Uttar Pradesh (AIR 2019 SC 3569) – The Supreme Court ruled that laboratory reports alone are insufficient without co-relating the tested sample with the seized one.
Quoted to reinforce the need for a traceable and credible evidentiary chain.
Court’s Reasoning
The Court meticulously dissected the prosecution’s lapses. It observed that PW6, the Sub-Inspector, failed to depose the nature of the seal used, and neither the seizure mahazar nor property list contained the seal impression.
“The absence of the specimen seal impression on the mahazar and property list creates a serious doubt as to whether the sample analyzed was the same as that seized,” the Court held.
The Court also found that the delay in producing the sample before the Chemical Examiner was unexplained. The failure to examine the property clerk or constable responsible for transporting the sample further broke the chain of custody.
The Court emphasized that procedural compliance under Sections 38 and 53A is not a mere formality but an essential safeguard of fairness. Since the prosecution failed to meet these mandatory requirements, the benefit of doubt had to go to the accused.
Conclusion
The Kerala High Court allowed the criminal appeal, setting aside the conviction and sentence imposed by the trial court. The Court held that:
- The prosecution failed to comply with Sections 38 and 53A of the Abkari Act.
- There was no proof that the seized sample and the tested sample were the same.
- The chain of custody was broken, and independent witnesses turned hostile.
Accordingly, the appellants were acquitted of the offence under Section 8(2) of the Abkari Act. Their bail bonds were cancelled, and they were set at liberty forthwith.
Implications
This judgment reinforces the principle that procedural compliance is the backbone of fair criminal prosecution under special laws like the Abkari Act. It underscores that courts cannot presume guilt in the absence of demonstrable adherence to statutory safeguards.
The ruling will likely serve as a precedent for future Abkari prosecutions, requiring investigating officers to scrupulously follow the sampling, sealing, and forwarding procedures and to document the chain of custody with precision. It also underscores the judiciary’s growing insistence on transparency and accountability in evidence handling.
FAQs
1. Why did the Kerala High Court acquit the accused?
Because the prosecution failed to comply with Sections 38 and 53A of the Abkari Act and could not establish a tamper-proof chain of custody linking the seized liquor to the chemical analysis.
2. What is Section 53A of the Abkari Act?
It mandates the procedure for drawing, sealing, and certifying samples of seized liquor in the presence of a Magistrate to ensure their authenticity and prevent tampering.
3. What precedent did the Court rely on most?
The Court primarily relied on Andikutty v. State of Kerala (2023 KHC 777), which held that non-compliance with Section 53A automatically vitiates the prosecution.
