Kerala High Court
Shylaja vs State Of Kerala on 18 July, 2025
2025:KER:53267
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 18TH DAY OF JULY 2025 / 27TH ASHADHA, 1947
CRL.A NO. 316 OF 2014
CRIME NO.14/2000 OF THRITHALA EXCISE RANGE, PALAKKAD
DISTRICT, PALAKKAD
AGAINST THE ORDER/JUDGMENT DATED IN CP NO.61 OF 2010
OF JUDICIAL MAGISTRATE OF FIRST CLASS, PATTAMBI ARISING OUT
OF THE ORDER/JUDGMENT DATED 20.03.2014 IN SC NO.850 OF 2010
OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, PALAKKAD
APPELLANTS/ACCUSED:
1 SHYLAJA
AGED 35 YEARS
W/O.SURESH BABU, THADATHIL VEEDU, PATTISSERI DESOM,
CHALISSERY VILLAGE, OTTAPPALAM TALUK.
2 SURESH BABU
AGED 38 YEARS
S/O.VELAYUDHAN, THADATHIL VEEDU, PATTISSERI DESOM,
CHALISSERY VILLAGE, OTTAPPALAM TALUK.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. SMT.N.S.HASNA MOL, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
17.07.2025, THE COURT ON 18.07.2025 DELIVERED THE FOLLOWING:
CRL.A NO. 316 of 2014
:2:
2025:KER:53267
JUDGMENT
The accused Nos.1 and 2 in S.C.No.850/2010, on the file of the Additional District and Sessions Court, Palakkad has preferred this appeal challenging the judgment of conviction and order of sentence passed against them for the offence punishable under Sections 55(g) and 8(2) r/w 8(1) of the Abkari Act. 2. The prosecution allegation in brief is that, on 17.06.2000, at 11.15 a.m., the accused were found in possession of 5 litres of arrack and 400 liters of wash and other utensils for brewing arrack inside their house bearing No.10/96, in contravention of the provisions of the Abkari Act, and thereby committed an offences punishable under Sections 55(g) and 8(2) r/w 8(1) of the Abkari Act.
3. Upon conclusion of the investigation, the final report was laid before the Judicial First Class Magistrate Court, Pattambi. Being satisfied that the case is one exclusively triable by a court of Session, the learned Magistrate, after complying with all legal formalities, committed the case to the Court of Session, Palakkad, under Section 209 of Cr.PC. The learned Sessions Judge, having taken cognizance of the offence, made over the case to the Additional Sessions Court-IV, Palakkad, for trial and disposal. On CRL.A NO. 316 of 2014 :3:
2025:KER:53267 appearance of the accused before the trial court, the learned Additional Sessions Judge, after hearing both sides under Section 227 of Cr.P.C. and upon perusal of the records, framed a written charge against the accused for offences punishable under Sections 55(g) and 8(2) r/w 8(1) of the Abkari Act. When the charge was read over and explained to the accused, both of them pleaded not guilty and claimed to be tried. 4. The prosecution in its bid to prove the charge levelled against the accused has altogether examined eight witnesses as PW1 to PW8 and marked Exts.P1 to P15. MO1 to MO8 were exhibited and identified. After the completion of prosecution evidence, the accused were questioned under Section 313 Cr.P.C., during which they denied all the incriminating materials brought out against them in evidence. On finding that the accused could not be acquitted under Section 232 of Cr.P.C., they were called upon to enter on their defence and adduce any evidence they may have in support thereof. But no evidence, whatsoever, was adduced from the side of the accused.
5. After trial, both the accused was found guilty of the offences punishable under Sections 55(g) and 8(2) r/w 8(1) of the Abkari Act, and they were convicted and sentenced to undergo CRL.A NO. 316 of 2014 :4:
2025:KER:53267 rigorous imprisonment for a period of three years for the above offences and to pay a fine of Rs.1,00,000/- each for each for the offences. In default of payment of fine, the accused were ordered to undergo rigorous imprisonment for a further period of six months each. Assailing the said judgment of conviction and the order of sentence passed, the present appeal has been preferred. 6. I heard learned counsel for the appellants and the learned Public Prosecutor.
7. The learned counsel for the appellants submitted that the accused are innocent of the allegations levelled against them and that they were falsely implicated in this case. According to the counsel, the accused had no connection whatsoever with the contraband allegedly seized in this case, and they were implicated on the basis of surmises and conjectures. According to the counsel in the case at hand, there is absolutely no material to show that the sample of the arrack and wash that was got analyzed in the laboratory is the very same sample drawn from the contraband seized in this case. It is pointed out that, in the Mahazar, the sample seal or specimen impression of the seal allegedly used is nowhere affixed. It is further submitted that the prosecution failed to prove that the contraband was recovered CRL.A NO. 316 of 2014 :5:
2025:KER:53267 from the conscious and exclusive possession of the accused. In short, the crux of the argument of the learned counsel for the appellants is that there are patent flaws in the manner in which the seizure and sampling procedures were carried out in this case rendering no guarantee that the sample produced before the court as well as reached for examination in the chemical examination laboratory is the very same sample collected from the spot of detection. Per contra, the learned Public Prosecutor would contend that all the procedural formalities to avoid future allegations of manipulation were scrupulously complied with in this case and hence warrants no interference.
8. A perusal of the record reveals that, in order to prove the charge levelled against the accused, the prosecution mainly relies on the evidence of the detecting officer and the documentary evidence produced in this case. This case was detected by the Excise Inspector of Excise Enforcement and Anti-Narcotic Special Squad, Palakkad. When the detecting officer was examined as PW1, he had narrated the entire sequence of events relating to the detection of the contraband and its seizure procedures. The seizure Mahazar allegedly prepared contemporaneous with the detection of the contraband was marked as Ext.P1.
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9. The independent witnesses cited by the prosecution to prove the alleged seizure were examined as PW4, PW5, and PW6. However, during the examination, they turned hostile to the prosecution by deposing that they did not witness the incident in this case. While considering the question whether the hostility shown by the independent witnesses had any serious impact in this case, it is to be borne in mind that it is a common occurrence that the independent witnesses in Abkari cases are turning hostile to the prosecution in almost all cases for reasons only best known to them. However, through a series of judicial pronouncements, it is well settled that the hostility shown by independent witnesses in Abkari cases is of little significance if the evidence of the official witnesses, including the detecting officer, is found to be convincing and reliable. Notably, in the case at hand, there is nothing to indicate that the detecting officer bore any grudge or animosity towards the accused that would motivate him to falsely implicate the accused in a case of this nature.
10. However, when a court is called upon to rely solely on the evidence of the detecting officer, the court must act with much care and circumspection. It is incumbent upon the prosecution to satisfy the court that all the procedures relating to CRL.A NO. 316 of 2014 :7:
2025:KER:53267 the search, seizure, and sampling of the contraband were carried out in foolproof manner, thereby ruling out any possibility of tampering. Nevertheless, in the case at hand, a bare perusal of Ext.P1 Mahazar reveals that neither the sample seal nor the specimen impression of the seal allegedly used by the detecting officer for sealing the sample does find a place in the Mahazar. The absence of a sample seal or specimen impression of the seal in the seizure Mahazar is certainly a circumstance to doubt the identity of the sample drawn and the identity of the sample produced before the court and ultimately got analyzed by the chemical examiner.
11. Likewise, in Ext.P1 seizure Mahazar, nothing is mentioned about the procedures of sampling and sealing which were adopted. During the examination before the court, PW1, the detecting officer, had not given any evidence regarding the nature of the seal used for sealing the samples as well as the residue of the contraband allegedly seized in this case.
12. Moreover, in a case of this nature, it is the bounden duty of the prosecution to show that the sample drawn from the spot remained in the safe custody until it reached the hands of the chemical examiner for analysis. Only when such a secure and CRL.A NO. 316 of 2014 :8:
2025:KER:53267 uninterrupted chain of custody is proved it can be held that the sample analysed is the very same one drawn from the contraband allegedly seized from the accused. Keeping in mind the above while reverting to the case at hand, it can be seen that in Ext.P7 forwarding note, the name of the Excise Guard with whom the contraband was entrusted from the court for producing before the chemical examiner's laboratory does not find a place. When the space designated in the forwarding note for recording the name of the Excise Guard remains blank, it is incumbent on the part of the prosecution to examine the Thondi clerk as well as the Excise Guard as a witnesess to prove that there was a tamper-proof dispatch of the sample from the court and an untampered transit of the same to the laboratory. The same view has been taken by this Court in Kumaran P. v. State of Kerala and Another (2016 (5) KHC 632). However, in the case at hand, neither the Thondi clerk nor the Excise Guard with whom the sample was entrusted from the court was examined. The absence of such examination enures to the benefit of the accused. Therefore, in the facts and circumstances of the present case, I have no hesitation in holding that the prosecution failed to prove the link evidence pertaining to the safe custody of the sample until it CRL.A NO. 316 of 2014 :9:
2025:KER:53267 reached the hands of the chemical examiner. The said lapse is
fatal to the prosecution, and hence, it is liable to be held that the prosecution failed to prove the charge beyond a reasonable doubt.
In the result, the appeal is allowed and the judgment of conviction and the order of sentence passed against the appellants/accused for the offences punishable under Sections 55(g) and 8(2) r/w 8(1) of the Abkari Act are set aside and they are acquitted. Fine amount, if any, has been deposited by the appellants/accused, the same shall be refunded to them in accordance with law.
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS