Kerala High Court
Shajimon K.J vs State Of Kerala on 3 July, 2025
2025:KER:48411
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 3RD DAY OF JULY 2025 / 12TH ASHADHA, 1947
CRL.A NO. 185 OF 2014
AGAINST THE ORDER/JUDGMENT DATED 29.01.2014 IN
SC.NO.229 OF 2013 OF ADDITIONAL SESSIONS COURT- IV, KOTTAYAM
APPELLANT/ACCUSED:
SHAJIMON K.J.
AGED 40 YEARS
S/O.JOHNSON, KANJIRAKKATTU HOUSE,
MEVADA KARA, MEENACHIL VILLAGE,
MEENACHIL TALUK, KOTTYAM.
ADV.SANIYA C.V., STATE BRIEF
RESPONDENT/RESPONDENT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
ADV. ALEX M.THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
03.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRL.A. No. 185 OF 2014
:2:
2025:KER:48411
JUDGMENT
The sole accused in S.C.No.229/2013, on the file of Additional Sessions Court-IV, Kottayam has preferred this appeal challenging the judgment of conviction and order of sentence passed against him in the said case for an offence punishable under Section 8(1) r/w 8(2) of the Kerala Abkari Act. 2. The prosecution allegation in brief is that, on 10.03.2012, at 11.30 p.m., the accused possessed 10 litres of arrack in a white plastic can and transported it in an autorickshaw bearing Registration No.KL37/6213 for the purpose of sale in violation 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. On completion of the investigation, the final report was submitted before the Judicial First Class Magistrate Court-I, Kanjirappally. On being satisfied that the said case is one exclusively triable by a court of session, the learned Magistrate, after complying with all legal formalities, committed the case to the Sessions Division, Kottayam, under Section 209 of Cr.PC. The learned Session Judge, after taking cognizance made over the CRL.A. No. 185 OF 2014 :3: 2025:KER:48411 case to the Additional Sessions Court-IV, Kottayam, for trial and disposal. On appearance of the accused before the trial court, the learned Session Judge, after hearing both sides under Section 227 of Cr.P.C. and perusing the records, framed a written charge against the accused for an offense 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 is bid to prove the charge levelled against the accused as altogether examined six witnesses as PW1 to PW6, and marked Exts.P1 to P13 and MO-1 and MO-2. 5. After the completion of prosecution evidence, when the accused was questioned under Section 313 Cr.P.C., 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. From the side of the accused, one witness was examined as DW1. 6. 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 CRL.A. No. 185 OF 2014 :4: 2025:KER:48411 one year and to pay a fine of Rs. 1 Lakh. In default of payment of fine, the accused was ordered to undergo simple imprisonment for a further period of three months. Aggrieved by the said judgment of conviction and order of sentence passed, the present appeal has been preferred.
7. I heard learned counsel for the appellant and the learned Public Prosecutor.
8. The learned counsel for the appellant would submit that the case registered against the accused is a foisted one. According to the counsel, the detecting officer failed to follow the procedures relating to the sampling and sealing of the seized contraband scrupulously, leaving room for tampering. The counsel further urged that there is no sufficient link evidence to show that the sample drawn from the contraband at the time of detection is the one examined in the chemical examiner's laboratory. According to counsel, there is overwriting in the date of covering letter by which the forwarding note, along with the sample, was sent to the chemical examiners laboratory and that manipulation was committed with the sole intention to coverup the delay occurred between the date of entrustment of the sample by the court for production before the chemical examiners laboratory and CRL.A. No. 185 OF 2014 :5: 2025:KER:48411 the actual date of receipt of the sample at the chemical examiners laboratory. According to the counsel, the delayed production of the sample before the laboratory after it was entrusted to an Excise Guard is fatal to the prosecution as it creates a real possibility of tampering. The learned counsel further submitted that it is unsafe to base a conviction solely on the testimony of the investigating officer, especially when the independent witness to the recovery has turned hostile to the prosecution, and even denied his signature in the Seizure Mahazer. 9. In response, the learned public prosecutor submitted that, contemporaneous with the detection of the contraband, the sample was drawn and sealed at the spot itself and produced before the Magistrate on the very next day of the detection. According to him, all the procedures relating to the sampling and sealing were duly and scrupulously followed in this case, ruling out any possibility of tampering. The learned Public Prosecutor further urged that the hostility shown by an independent witness to a seizure Mahazar in an Abkari case is of no serious consequence, particularly when the evidence of the investigating officer is convincing, and that the procedural formalities regarding search and seizure were scrupulously complied with. CRL.A. No. 185 OF 2014 :6: 2025:KER:48411
10. A perusal of the records 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 of Excise, Ponkunnam, on 10.03.2012. When the detecting officer was examined as PW2, he had portrayed the entire sequence of events related to the detection of the contraband as well as the seizure procedures, including sealing and sampling. The seizure Mahazer prepared by PW2 from the spot of detection was marked as Ext.P1.
11. The independent witnesses cited by the prosecution to prove the alleged detection of the contraband were examined as PW1. However, he turned hostile to the prosecution by deposing that he did not witness the incident in this case. He even denied the signature found in the seizure Mahazar. While considering the question whether the hostility shown by PW1 had any bearing on the outcome of the case, it is to be noted that it is a common occurrence that the independent witnesses in Abkari cases often turn hostile to the prosecution for reasons best known to them. However, through a series of judicial pronouncements, it is well settled that the hostility shown by independent witnesses in CRL.A. No. 185 OF 2014 :7: 2025:KER:48411 Abkari cases is of little significance provided 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 has any axe to grind against the accused to falsely implicate the accused in a case of this nature. However, when a court is called upon to rely on the solitary evidence of the detecting officer, the court must act with much care and circumspection. Moreover, 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 done in a foolproof manner, ruling out the possibility of tampering.
12. One of the main contentions taken by the learned counsel for the appellant is that there is an overwriting in the date of covering letter by which the forwarding note, along with sample, was sent to the chemical examiners laboratory and the said manipulation was committed with the sole intention of covering the delay occurred between the date of entrustment of the sample by the court for producing the same before the chemical examiner's laboratory and its actual date of receipt in the said laboratory. According to the counsel, the delayed production of the sample before the laboratory, after it was CRL.A. No. 185 OF 2014 :8: 2025:KER:48411 entrusted to an excise guard, is fatal to the prosecution as it gives rise to a possibility of tampering.
13. In order to address the above contention of the appellant, it is necessary to verify the chemical examiner's report which is marked as Ext.P12. in Ext.P12 it is mentioned that the sample collected in this case was received at the laboratory on 22.03.2012 through an excise guard named Anil Velayudhan. In the report, it is further mentioned that the seals on the sample bottle were intact and found to tally with the sample seal provided. Likewise, in the forwarding note, which is marked as Ext.P8, the specimen impression of the seal as well as the sample seal find a place. Therefore, I have no hesitation in holding that the chemical examiner got sufficient opportunity to compare the seal found on the sample bottle with the sample seal provided in the forwarding note.
14. However, the covering letter by which the forwarding note and the sample were transmitted to the chemical examiners' laboratory and which forms part of Ext.P8, shows that the same is originally dated 14.03.2012. However, an overwriting is clearly visible in the portion where the date is mentioned, and it has been altered to 21.03.2012. In the said letter issued by the court, CRL.A. No. 185 OF 2014 :9: 2025:KER:48411 it is mentioned that the sample in this case was entrusted with Anil Velayudhan, an Excise guard, for production before the chemical examiners' laboratory. The overwriting on the date contained in the covering letter raises serious suspicion. It is demonstrably clear that the date originally written was 14.03.2012. As already stated, Ext. P12 chemical examination report reveals that the sample reached the hands of the chemical examiner only on 22.03.2012. Therefore, it is only reasonable to infer that the overwriting on the date of the covering letter may have been done with the intention of covering up the delay in the production of the sample before the chemical examiner's laboratory. In the case at hand, there is absolutely no evidence to show that the sample was in the safe custody from the date it was entrusted to the above-named excise guard until it was produced before the chemical examiners' laboratory. For the sake of argument if at all it is assumed that the overwritting on the date of covering letter was not made with any malafade intention, it was the duty of the prosecution to examine the Thondi Clerk and to produce the relevant Thondi register and other documents showing the despatch of the sample with the excise guard. However, no attempt is seen to be made from the side of the CRL.A. No. 185 OF 2014 :10: 2025:KER:48411 prosecution in that regard. In the above circumstances, it is found that the prosecution failed to show that the sample examined by the chemical examiner is the very same sample drawn from the contraband allegedly seized in this case.
In the result, the appeal is allowed and the judgment of the conviction and order of sentence passed against the appellant/accused for the offence punishable under Section 8(2) r/w 8(1)of Kerala 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.
Sd/-
JOBIN SEBASTIAN JUDGE rkr