Kerala High Court
Rajendran @ Velu vs State Of Kerala on 4 July, 2025
2025:KER:48816
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 4TH DAY OF JULY 2025 / 13TH ASHADHA, 1947
CRL.A NO. 853 OF 2014
CRIME NO.476/2008 OF PANDALAM POLICE STATION, PATHANAMTHITTA
AGAINST THE ORDER/JUDGMENT DATED IN CP NO.150 OF 2008 OF
JUDICIAL MAGISTRATE OF FIRST CLASS, ADOOR ARISING OUT OF THE
ORDER/JUDGMENT DATED 18.08.2014 IN SC NO.133 OF 2012 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT- II,
PATHANAMTHITTA
APPELLANT/ACCUSED:
RAJENDRAN @ VELU
AGED 40 YEARS
S/O.GOPALAN, VENMANITHEKKETHIL VEEDU, CHIRAMUDI,
POOZHIKKADU, PANDALAM.
BY ADVS.
SRI.K.SHAJ
SMT.ANJU MOHAN
SRI.RENJITH.R
SRI.RENJIT GEORGE
SRI.SAJJU.S
SRI.S.K.SUJITH KRISHNA
SRI.S.VISHNU (ARIKKATTIL)
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
ADV.
SMT. N.S. HASNA MOL, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
03.07.2025, THE COURT ON 04.07.2025 DELIVERED THE FOLLOWING:
CRL.A. No. 853 OF 2014
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JUDGMENT
The sole accused in S.C.No.133/2012, on the file of Additional District & Sessions Court-II, Pathanamthitta has preferred this appeal challenging the judgment of conviction and order of sentence passed against him in the said case for the offence punishable under Section 8(2) r/w 8(1) of the Kerala Abkari Act.
2. The prosecution allegation in brief is that, on 27.06.2008, at 6.00 p.m., the accused was found on the side of a road near 'Cherumudi Junction', possessing 1.5 liters of spirit diluted arrack, and 20 liters of diluted spirit 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, Adoor. 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 Court of Sessions, Pathanamthitta, under Section 209 of Cr.PC.
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The learned Session Judge, after taking cognizance made over the case to the Additional Sessions Court-II, Pathanamthitta, 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 perusal of 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 in its bid to prove the charge levelled against the accused has altogether three witnesses as PW1 to PW6, and marked Exts.P1 to P6. MO1 and MO4 series were identified. 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. 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 CRL.A. No. 853 OF 2014 :4: 2025:KER:48816 was convicted and sentenced to undergo rigorous imprisonment for three years 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 fifteen days. 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 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 summaries and conjectures. According to the counsel in the case at hand, there is absolutely no material to show that the sample of the arrack that got analysed in the laboratory is the very same sample drawn from the contraband seized in this case. It is pointed out that, in the Mahazar, property list, and the forwarding note, the sample seal or specimen impression of the seal allegedly used is nowhere affixed. In short, the crux of the CRL.A. No. 853 OF 2014 :5: 2025:KER:48816 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.
8. 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. According to the learned Public Prosecutor, the sample was drawn at the spot of detection itself, and was produced before the court on the very next day. It is pointed out that, since there was no delay in producing the sample before the court, there is no room for any manipulations or tampering.
9. 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 Sub Inspector of Police, Pandalam, on 27.06.2008. When the detecting officer was examined as PW3, he CRL.A. No. 853 OF 2014 :6: 2025:KER:48816 had narrated the entire sequence of events relating to the detection of the contraband and its seizure procedures. The seizure Mahazar prepared contemporaries with the detection of the contraband was marked as Ext. P1.
10. The independent witnesses cited by the prosecution to prove the alleged seizure was examined as PW1. However, during examination, PW1 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 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 CRL.A. No. 853 OF 2014 :7: 2025:KER:48816 accused in a case of this nature.
11. 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 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 not 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.
12. Likewise, in Ext.P1 seizure Mahazar, nothing is aramentioned about the procedures of sampling and sealing which was 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 CRL.A. No. 853 OF 2014 :8: 2025:KER:48816 the contraband allegedly seized in this case.
13. Additionally, it is pertinent to note that in the copy of the forwarding note, which is marked as Ext.P5 also, the sample seal or specimen impression of the seal is not provided. In Sasidaran V. State of Keala ( 2007 (1) KLT 720), this Court held that the prosecution has a duty to prove that the sample taken from the contraband liquor seized from the accused is the sample reached at the hand of the chemical examiner. Only if the specimen impression of the sample or sample seal is affixed in the forwarding note, the chemical examiner would get an opportunity to compare the seal found on the sample bottle with the sample seal provided in the forwarding note. Hence, in the absence of the seal in the forwarding note, it cannot be said that the sample got analysed in the laboratory is the sample drawn from the contraband seized in this case and forwarded for examination.
14. In Prakash V. State of Kerala (2016 (1) KLT SN 89 (C.No. 96) held as follows;
"Further in the absence of specimen seal impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected CRL.A. No. 853 OF 2014 :9: 2025:KER:48816 to contain the specimen seal impression of the seal used for sealing the sample for the purose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in Court in the same condition in which it was siezed and it reached the chemical examiner's lab in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of contraband article alleged to have been seized from the posession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused".
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 could not be said that the sample collected at the time of detection is the very same sample that was later CRL.A. No. 853 OF 2014 :10: 2025:KER:48816 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 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
ANS