Thavalappara Babu vs State Of Kerala

Citation : 2025 Latest Caselaw 1164 Ker
Judgement Date : 18 July, 2025

Kerala High Court

Thavalappara Babu vs State Of Kerala on 18 July, 2025

                                               2025:KER:53266


          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. 2948 OF 2008

      AGAINST THE ORDER/JUDGMENT DATED 19.11.2008 IN SC
NO.110 OF 2004 OF ADDITIONAL DISTRICT COURT (ADHOC)-III,
THALASSERY

APPELLANT/ACCUSED:

          THAVALAPPARA BABU​
          MALAYAMBADI, KANICHAR AMSOM/DESOM,
          THALASSERY TALUK, KANNUR DISTRICT.

          BY ADV SRI.P.K.RAVISANKAR

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 18.07.2025 DELIVERED THE FOLLOWING:
 ​    ​    ​    ​    ​          ​        ​      ​
CRL.A NO. 2948 of 2008
​    ​    ​    ​    ​              :2:

                                                            2025:KER:53266

                               JUDGMENT

​ The sole accused in S.C.No.110/2004, on the file of Additional Sessions Court (Adhoc-III), Thalassery, has preferred this appeal challenging the judgment of conviction and order of sentence passed against him for the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act.

​ 2. The prosecution allegation in brief is that, on 28.07.2000, at 07.30 a.m., at Malayampadi in Kannavam, the accused was found in possession of 10 litres of arrack for the purpose of sale in contravention of the provisions of the Abkari Act, and thereby committed the offences punishable under Sections 55(a) 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, Kuthuparamba. 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, Thalassery, 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(Adhoc-III), Thalassery, for trial and disposal. On appearance of the accused ​ ​ ​ ​ ​ ​ ​ ​ CRL.A NO. 2948 of 2008 ​ ​ ​ ​ ​ :3:

2025:KER:53266 before the trial court, the learned Additional Sessions Judge, after hearing both sides under Section 227 of Cr.P.C. and upon a perusal of the records, framed a written charge against the accused for the offences punishable under Sections 55(a) and 8(2) r/w 8(1) of the Abkari Act. When the charge was read over and explained to the accused, he 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 three witnesses as PW1 to PW3 and marked Exts.P1 to P7. MO1 was exhibited and identified. After the completion of prosecution evidence, the accused was questioned under Section 313 of Cr.P.C., during which he denied all the incriminating materials brought out against him in evidence. On finding that the accused could not be acquitted under Section 232 of Cr.P.C., he was called upon to enter on his defence and adduce any evidence he may have in support thereof. On the side of the accused, one witness was examined as DW1.
​ 5. After trial, the accused was found guilty of the offence punishable under section 8(2) r/w 8(1) of the Abkari Act, and he was convicted and sentenced to undergo rigorous imprisonment ​ ​ ​ ​ ​ ​ ​ ​ CRL.A NO. 2948 of 2008 ​ ​ ​ ​ ​ :4:
2025:KER:53266 for a period of one and a half years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused was ordered to undergo rigorous imprisonment for a further period of three months. 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 appellant and the learned Public Prosecutor.
7. The learned counsel for the appellant submitted that the accused is innocent of the allegations levelled against him and that he was falsely implicated in this case. According to the counsel, the accused had no connection whatsoever with the contraband allegedly seized in this case, and he was 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 that 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. In short, the crux of the argument of the learned counsel for the appellant is that there is patent flaw in the manner in which the seizure and sampling procedures were carried out in this case rendering no ​ ​ ​ ​ ​ ​ ​ ​ CRL.A NO. 2948 of 2008 ​ ​ ​ ​ ​ :5:

2025:KER:53266 guarantee that the sample produced before the court as well as reached for examination in the chemical examination laboratory is the 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, Excise Range, Peravoor. When the detecting officer was examined as PW2, he had narrated the entire sequence of events relating to the detection of the contraband and its seizure procedures. The seizure Mahazar prepared contemporaneous with the detection of the contraband was marked as Ext. P2.
9. The independent witness cited by the prosecution to prove the alleged seizure was examined as PW1. However, during the examination, PW1 turned hostile to the prosecution by deposing that he did not witness the incident in this case. While ​ ​ ​ ​ ​ ​ ​ ​ CRL.A NO. 2948 of 2008 ​ ​ ​ ​ ​ :6:
2025:KER:53266 considering the question whether the hostility shown by the independent witness 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 the search, seizure, and sampling of the contraband were carried out in a foolproof manner, thereby ruling out any possibility of tampering. Nevertheless, in the case at hand, a bare perusal of Ext.P2 Mahazar reveals that neither the sample seal nor the ​ ​ ​ ​ ​ ​ ​ ​ CRL.A NO. 2948 of 2008 ​ ​ ​ ​ ​ :7:
2025:KER:53266 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 got analyzed by the chemical examiner.
11. Likewise, in Ext.P2 seizure Mahazar, nothing is mentioned about the procedures of sampling and sealing, which were adopted. During the examination before the court, PW2, 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. Therefore, I have no hesitation in holding that the prosecution failed to prove that the procedures of seizure and sampling in this case were carried out in a foolproof manner. In the absence of the specimen impression of the seal or sample seal in the seizure mahazar, it cannot be safely concluded that the sample collected at the time of detection is the very same sample that was produced before the court and later examined in the chemical examiner's laboratory. In the above circumstances, it is found that the prosecution has not succeeded in proving the case ​ ​ ​ ​ ​ ​ ​ ​ CRL.A NO. 2948 of 2008 ​ ​ ​ ​ ​ :8:
2025:KER:53266 against the accused beyond a reasonable doubt.
In the result, the appeal is allowed and the judgment of conviction and the order of sentence passed against the appellant/accused for the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act is set aside and he is acquitted. Fine amount, if any, has been deposited by the appellant/accused, the same shall be refunded to him in accordance with law.

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                   ​                    ​       ​         ​        ​    Sd/-
       ​     ​         ​         ​          ​        ​            JOBIN SEBASTIAN
                                                                        JUDGE
ANS
 
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