Kerala High Court
P.K.Ramankutty vs State Of Kerala on 25 July, 2025
2025:KER:54808
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 25TH DAY OF JULY 2025 / 3RD SRAVANA, 1947
CRL.A NO. 2071 OF 2010
AGAINST THE ORDER/JUDGMENT DATED 20.09.2010 IN SC NO.412
OF 2005 OF ADDITIONAL DISTRICT COURT (ADHOC), KALPETTA
APPELLANT/ACCUSED:
P.K.RAMANKUTTY
YEARS, PUTHUKAVU PADDIYIL, MUPPAINAD,
RIPPON, WAYANAD.
BY ADV SRI.A.C.DEVY
RESPONDENT/RESPONDENT:
STATE OF KERALA
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, KOCHI-31.
BY ADV.
SRI.ALEX M.THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
23.07.2025, THE COURT ON 25.07.2025 DELIVERED THE FOLLOWING:
CRL.A NO. 2071 OF 2010 2 2025:KER:54808
JUDGMENT
The sole accused in S.C.No.412/2005, on the file of the Additional Sessions Court (ADHOC)-I, Kalpetta, 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 21.11.2004, near the tea shed of the Harisons Malayalam Tea Estate, the accused was found in possession of 3 liters of arrack in a plastic jerry can having a capacity of 5 litres, 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 Chief Judicial Magistrate Court, Kalpetta. Being satisfied that the case is one exclusively triable by a Court of Session, the learned Chief Judicial Magistrate, after complying with all legal formalities, committed the case to the Court of Session, Kalpetta, under Section 209 of Cr.PC. The learned Sessions Judge, having taken cognizance of the offence, made CRL.A NO. 2071 OF 2010 3 2025:KER:54808 over the case to the Additional Sessions Court (ADHOC)-I, Kalpetta, 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 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 six witnesses as PW1 to PW6, 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. But no evidence, whatsoever, was adduced from the side of the accused.
5. After trial, the accused was found guilty of the offence CRL.A NO. 2071 OF 2010 4 2025:KER:54808 punishable under section 8(2) r/w 8(1) of the Abkari Act, and he was convicted and sentenced to undergo simple imprisonment for two years 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 one year. 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 based on surmises and conjectures. It is urged that 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 CRL.A NO. 2071 OF 2010 5 2025:KER:54808 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. It is further submitted that the Preventive Officer who detected the case was not a competent Abkari officer to register a case under Abkari Act and hence the entire proceedings in this case, including taking of cognizance and the trial, were vitiated and the accused is entitled to be acquitted. 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 warrant 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 Preventive Officer, Excise Range office, Kalpetta.
CRL.A NO. 2071 OF 2010 6 2025:KER:54808 When the detecting officer was examined as PW1, he narrated the entire sequence of events relating to the detection of the contraband and its seizure procedures. The seizure Mahazar prepared contemporaneously with the detection of the contraband was marked as Ext.P2.
9. The independent witnesses cited by the prosecution to prove the alleged seizure were examined as PW4 and PW5. However, during the examination before the court, both of them 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 CRL.A NO. 2071 OF 2010 7 2025:KER:54808 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 specimen impression of the seal allegedly used by the detecting officer for sealing the sample finds 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, PW1, the detecting officer, CRL.A NO. 2071 OF 2010 8 2025:KER:54808 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. Admittedly, this case was detected by a Preventive Officer attached to Kalpetta Excise Range. As already stated, he was examined as PW1. Apart from detecting the case, it was he who registered Ext.P3, the crime and occurrence report. Moreover, he prepared Ext.P4 property list and Ext.P5 forwarding note. I do agree that a Preventive Officer was conferred with the power to detect an Abkari case as per Government notification 234/1967. As per the said notification, a Preventive Officer can not only detect an offence but also can arrest the accused and seize the properties. However, after detection and seizure, he is duty-bound to report the facts to the Range Officer and produce the properties and the accused before the Excise Inspector. Only the Excise Inspector can register and investigate crimes under the Abkari Act. The power to register crimes or to investigate, or even to submit a final report, is not given to Preventive Officers under the said notification. Therefore, the action of the Preventive Officer in registering the case and conducting a part CRL.A NO. 2071 OF 2010 9 2025:KER:54808 of the investigation in this case is without jurisdiction. Consequently, the cognizance taken and trial conducted in this case are also vitiated.
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) of the Abkari Act is0000 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.
Sd/-
JOBIN SEBASTIAN JUDGE ANS