Kerala High Court
Balagopalan @ Kuttan vs State Of Kerala on 21 July, 2025
2025:KER:53902
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
CRL.A NO. 384 OF 2014
AGAINST THE ORDER/JUDGMENT DATED 11.03.2014 IN SC
NO.287 OF 2012 OF III ADDITIONAL DISTRICT COURT, PALAKKAD
APPELLANT/2ND ACCUSED:
SAKEER HUSSAIN
AGED 40 YEARS
S/O.FAROOK ISMAIL, THOTTUPALAM HOUSE, MARUTHAMKAD,
ALATHUR, PALAKKAD DISTRICT.
BY ADV SRI.RAJIT
RESPONDENT/STATE:
STATE OF KERALA
REP. BY THE 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
18.07.2025, ALONG WITH CRL.A.386/2014, THE COURT ON
21.07.2025 DELIVERED THE FOLLOWING:
CRL.A NOS.384 & 386 of 2014
:2:
2025:KER:53902
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
CRL.A NO. 386 OF 2014
CRIME NO.491/2009 OF TOWN NORTH POLICE STATION, PALAKKAD
AGAINST THE ORDER/JUDGMENT DATED 11.03.2014 IN SC
NO.287 OF 2012 OF III ADDITIONAL DISTRICT COURT, PALAKKAD
ARISING OUT OF THE ORDER/JUDGMENT DATED IN CP NO.24 OF 2011
OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II, PALAKKAD
APPELLANT/1ST ACCUSED:
BALAGOPALAN @ KUTTAN
S/O.PACHU, PALLATHU VEEDU, POTTASSERY, KANHIRAM,
PALAKKAD DIST
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP 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
18.07.2025, ALONG WITH CRL.A.384/2014, THE COURT ON
21.07.2025 DELIVERED THE FOLLOWING:
CRL.A NOS.384 & 386 of 2014
:3:
2025:KER:53902
COMMON JUDGMENT
The accused Nos. 1 and 2 in S.C.No.287/2012, on the file of the Additional Sessions Court-III, Palakkad, have preferred these appeals challenging the judgment of conviction and order of sentence passed against them for the offence punishable under Section 55(a) of the Abkari Act.
2. The prosecution allegation in brief is that, on 19.10.2009, at 9.00 p.m., near Manali Junction at Palakkad, the accused Nos. 1 and 2 were found in possession and transporting 875 litres of spirit in a Qualis Van bearing registration No.TN-10-H-9183 for the purpose of sale in contravention of the provisions of the Abkari Act, and thereby committed an offence punishable under Section 55(a) of the Abkari Act.
3. Upon conclusion of the investigation, the final report was laid before the Judicial First Class Magistrate Court-II, Palakkad, against five accused. On issuance of process, accused Nos. 1, 2, and 5 appeared before the learned Magistrate. Being satisfied that the case against them 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 case against accused CRL.A NOS.384 & 386 of 2014 :4:
2025:KER:53902 Nos. 3 and 4, the absconding accused was split up and refiled as C.P.No.6/2012. The learned Sessions Judge, having taken cognizance of the offence, made over the case to the Additional Sessions Court-III, Palakkad, for trial and disposal. On appearance of the accused No.1, 2, and 5 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 them for an offence punishable under Section 55(a) of the Abkari Act. When the charge was read over and explained to the accused, all 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 ten witnesses as PW1 to PW10 and marked Exts.P1 to P21. MO1 to MO4 series were exhibited and identified. After the completion of prosecution evidence, the accused were questioned under Section 313 of 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, CRL.A NOS.384 & 386 of 2014 :5:
2025:KER:53902 was adduced from the side of the accused. 5. After trial, the 5th accused was found not guilty and he was acquitted. However, the 1st and 2nd accused were found guilty of the offence punishable under section 55(a) of the Abkari Act, and they were convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- each. In default of payment of fine, the accused were ordered to undergo simple imprisonment for a further period of three months each. Assailing the said judgment of conviction and the order of sentence passed, the present appeals have 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. It is urged that there is absolutely no material to show that the sample of the spirit that got analyzed in the laboratory is the very same sample drawn CRL.A NOS.384 & 386 of 2014 :6:
2025:KER:53902 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 appellants is that there is patent flaw 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 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 Sub-Inspector of Police, Town North Police Station, Palakkad.
When the detecting officer was examined as PW7, he had narrated the entire sequence of events relating to the detection of the contraband and its seizure procedures. The seizure Mahazar CRL.A NOS.384 & 386 of 2014 :7:
2025:KER:53902 prepared contemporaneous with the detection of the contraband was marked as Ext. P1.
9. The independent witnesses cited by the prosecution to prove the alleged seizure were examined as PW1 to PW4.
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 CRL.A NOS.384 & 386 of 2014 :8:
2025:KER:53902 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 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 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, PW7, 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 CRL.A NOS.384 & 386 of 2014 :9:
2025:KER:53902 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 against the accused beyond a reasonable doubt.
In the result, both the appeals are allowed, and the judgment of conviction and the order of sentence passed against the appellants/accused for the offence punishable under Section 55(a) of Abkari Act is 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