Kerala High Court
Shijumon @ Kuttan vs State Of Kerala on 21 July, 2025
2025:KER:53907
CRL.A NO. 275 OF 2010
1
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. 275 OF 2010
AGAINST THE JUDGMENT DATED 11.01.2010 IN S.C NO.578 OF
2007 OF ADDITIONAL SESSIONS COURT (FAST TRACK-II),
ALAPPUZHA
APPELLANT/ACCUSED:
SHIJUMON @ KUTTAN @ SHIJU,
S/O.ANANDAN,
ANANDABHAVANAM, NALLENIKKALMURI,
ARATTUPUZHA VILLAGE, KARTHIKAPPILLY.
BY ADVS.
SRI.R.BINDU (SASTHAMANGALAM)
SHRI.M.SUNILKUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SRI.ALEX.M.THOMBRA- SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING
ON 18.07.2025, THE COURT ON 21.07.2025 DELIVERED THE
FOLLOWING:
2025:KER:53907
CRL.A NO. 275 OF 2010
2
JUDGMENT
The sole accused in S.C.No.578/2007, on the file of the Additional Sessions Court(Fast Track-II), Alappuzha, 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 03.06.2004, at 11.30 a.m., the accused was found in possession of 20 litres of arrack kept in two cans of 10 litre capacity for the purpose of sale in contravention of the provisions of the Abkari Act, and thereby committed an offence punishable under Section 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-I, Haripad. 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, Alappuzha, under Section 209 of Cr.PC. The learned 2025:KER:53907 CRL.A NO. 275 OF 2010 3 Sessions Judge, having taken cognizance of the offence, made over the case to the Additional Sessions Court(Fast Track-II), Alappuzha, for trial and disposal. On 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 an offence punishable under Section 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 five witnesses as PW1 to PW5 and marked Exts.P1 to P6. MO1 series and MO2 were 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 2025:KER:53907 CRL.A NO. 275 OF 2010 4 evidence he may have in support thereof. From 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 simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused was ordered to undergo simple 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 Senior 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, 2025:KER:53907 CRL.A NO. 275 OF 2010 5 in the case at hand, there is absolutely no material to show that the sample of the arrack 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 was further submitted that the copy of the forwarding note, which is a crucial document in an Abkari case, is not marked as evidence in this case, and the same is fatal to the prosecution. 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 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 Senior 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.
2025:KER:53907 CRL.A NO. 275 OF 2010 6
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 Circle-Inspector attached to the Excise Enforcement and Anti-Narcotic Special Squad. 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 prepared contemporaneous with the detection of the contraband was marked as Ext. P3.
9. The independent witness cited by the prosecution to prove the alleged seizure was examined as PW3. However, during the examination, PW3 turned hostile to the prosecution by deposing that he did not witness the incident in this case. While 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 2025:KER:53907 CRL.A NO. 275 OF 2010 7 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.P3 Mahazar reveals that neither the sample seal nor the specimen impression of the seal 2025:KER:53907 CRL.A NO. 275 OF 2010 8 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.P3 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. At this juncture, it is pertinent to note that the copy of the forwarding note, which is a crucial document in an Abkari case, is seen not marked in evidence in this case. The non-production of the forwarding note is undoubtedly fatal to the prosecution. Only when the same is produced, the court can verify whether it contains the specimen impression of the seal or the sample seal that was meant to help the chemical 2025:KER:53907 CRL.A NO. 275 OF 2010 9 examiner to compare with the seal found on the sample. In the absence of a copy of the forwarding note, it is impossible to conclude that the sample collected from the spot is the very same sample that was ultimately examined in the laboratory.
13. 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 convincing evidence regarding proper sampling and sealing, it cannot be safely concluded that the sample collected at the time of detection is the very same sample that was 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, 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 2025:KER:53907 CRL.A NO. 275 OF 2010 10 deposited by the appellant/accused, the same shall be refunded to him in accordance with law.
Sd/-
JOBIN SEBASTIAN
JUDGE
rkr