Kerala High Court
Bindu vs State Of Kerala on 23 July, 2025
2025:KER:54651
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 23RD DAY OF JULY 2025 / 1ST SRAVANA, 1947
CRL.A NO. 802 OF 2014
AGAINST THE ORDER/JUDGMENT DATED IN CP NO.12 OF
2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS
,PARAPPANANGADI ARISING OUT OF THE ORDER/JUDGMENT DATED
07.08.2014 IN SC NO.172 OF 2011 OF ADDITIONAL SESSIONS
COURT - III, MANJERI
APPELLANT/ACCUSED:
BINDU, AGED 31 YEARS, W/O.MANI,
THADATHIL HOUSE, AYYAYA DESAM,
OZHUR AMSOM, TIRUR TALUK, MALAPPURAM DISTRICT.
BY ADVS.
SRI.P.G.SURESH
SRI.V.HARISH
SRI.RAJAN VISHNURAJ
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED THROUGH THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.
BY SMT. N.S. HASNA MOL, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 21.07.2025, THE COURT ON 23.07.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
The accused in S.C.No.172/2011, on the file of the Additional Sessions Court-III, Manjeri, has preferred this appeal challenging the judgment of conviction and order of sentence passed against her for the offence punishable under Section 55(g) of the Abkari Act.
2. The prosecution allegation in brief is that, on 05.01.2011, at about 5.30 p.m., the accused was found in possession and transporting 10 litres of wash in a blue bucket having a capacity of 10 litres, near the water tank at Korumpara at Ozhur Amsom Ayyaya desom, for the purpose of brewing arrack in contravention of the provisions of the Abkari Act, and thereby committed an offence punishable under Section 55(g) of the Abkari Act.
3. Upon conclusion of the investigation, the final report was laid before the Judicial First Class Magistrate Court-I, Parappanangadi. In response to the process issued, the accused appeared before the learned Magistrate. Being satisfied that the case against her is one exclusively triable by a Court of Session, the learned Magistrate, after CRL.A NO.802/2014 :3: 2025:KER:54651 complying with all legal formalities, committed the case to the Court of Session, Manjeri, 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-III, Manjeri, 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 a perusal of the records, framed a written charge against her for an offence punishable under Section 55(g) of the Abkari Act. When the charge was read over and explained to the accused, she 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 P5. MO1 was exhibited and identified. After the completion of prosecution evidence, the accused was questioned under Section 313 of Cr.P.C., during which she denied all the incriminating materials brought out against her in evidence. On finding that the accused could not be acquitted under CRL.A NO.802/2014 :4: 2025:KER:54651 Section 232 of Cr.P.C., she was called upon to enter on her defence and adduce any evidence she may have in support thereof. But no evidence, whatsoever, was adduced from the side of the accused.
5. After trial, the accused was found guilty of the offence punishable under Section 55(g) of the Abkari Act and convicted and sentenced her to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/-. In default of payment of the 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 both sides.
7. The learned counsel for the appellant submitted that the accused is innocent of the allegations levelled against her and that she 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 she was implicated on the basis of surmises and CRL.A NO.802/2014 :5: 2025:KER:54651 conjectures. It is urged that there is absolutely no material to show that the sample of the wash 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 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.
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This case was detected by the Excise Inspector, Tirur Range. When the detecting officer was examined as PW3, 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. P1.
9. Undisputedly, in a case of this nature, 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.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.
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10. 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, PW3, 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.
11. 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 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 CRL.A NO.802/2014 :8: 2025:KER:54651 appellant/accused for the offence punishable under Section 55(g) of Abkari Act is set aside, and she is acquitted. Fine amount, if any, has been deposited by the appellant/accused, the same shall be refunded to her in accordance with law. Sd/-
JOBIN SEBASTIAN
JUDGE
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