Kerala High Court
A.C.Narayanan vs State Of Kerala on 4 July, 2025
2025:KER:48815
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. 280 OF 2014
AGAINST THE ORDER/JUDGMENT DATED 22.02.2014 IN SC
NO.1121 OF 2012 OF ADDITIONAL DISTRICT COURT & SESSIONS
COURT - III, KASARAGOD, KASARAGODE
APPELLANT:
A.C.NARAYANAN
AGED 38 YEARS
S/O.ANGARA, BERAKA HARIJAN COLONY,
MULIYAR VILLAGE, KASARAGOD TALUK
BY ADVS.
SRI.T.SETHUMADHAVAN (SR.)
SHRI.K.JAYESH MOHANKUMAR
SRI.PUSHPARAJAN KODOTH
SMT.VANDANA MENON
RESPONDENT:
STATE OF KERALA
REP BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
BY ADVS
SRI.RENJITH GEORGE, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
03.07.2025, THE COURT ON 04.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
The sole accused in S.C.No.1121 of 2012 on the file of the Additional Sessions Court-III, Kasargod, has preferred this appeal challenging the judgment of conviction and the order of sentence passed against him in the said case for an offence punishable under Section 55(a) of the Abkari Act.
2. The prosecution case allegation is that, on 22.12.2005, at 10.45 a.m., the accused was found possessing 23 packets of arrack, each containing 100 ml in a white polythene bag for the purpose of sale in violation of the provisions contained under the Abkari Act. Hence, the accused is alleged to have committed the offence punishable under Section 55(a) of the Abkari Act. 3. After completion of the investigation, the final report was submitted before the Judicial First Class Magistrate-I, Kasargod. On 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, Kasargod under Section 209 Cr.PC. The learned Sessions Judge, after taking cognizance, made over the case for trial and disposal to the Additional Sessions Judge-III, Kasargod.
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On appearance of the accused before the trial court, the learned Additional Sessions Judge, after hearing both sides under Section 227 Cr.PC. and perusal of records, framed a written charge against the accused for an offence punishable under Section 55(a) 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. From the side of the prosecution, four witnesses were examined as PW1 to PW4 and marked Exts.P1 to P13. After the completion of the prosecution evidence, when the accused was questioned under Section 313 Cr.PC., he denied all the incriminating materials brought out against him in evidence. On finding that the accused could not be acquitted under Section 232 Cr.PC, he was called upon to enter on his defence and adduce any evidence he may have in support thereof. However, no evidence whatsoever was adduced from the side of the accused. After trial, the accused was found guilty of the offence punishable under section 55(a) of the Abkari Act, and he was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 Lakh. In default of payment of Crl.A.280 OF 2014 :4:
2025:KER:48815 fine, the accused was ordered to undergo rigorous imprisonment for a period of three months. Assailing the said judgment of conviction and order of sentence passed, the accused has come up with this appeal.
5. I heard the learned counsel appearing for the appellant and the learned Senior Public Prosecutor.
6. The learned counsel for the appellant/accused 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 sampling and sealing the seized contraband scrupulously, leaving room for tampering. According to the counsel, the detecting officer committed a grave procedural irregularity by not affixing the sample seal or specimen impression of the seal in the seizure Mahazar prepared in this case. It is pointed out that, in the absence of a seal in the seizure Mahazar, it cannot be said 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. The learned counsel further urged that during the examination before the court, the detection officer failed to depose about the nature of Crl.A.280 OF 2014 :5:
2025:KER:48815 the seal used by him in sealing the sample. The learned counsel further submitted that though there is a delay of more than six years inordinate delay in conducting the investigation, no explanation whatsoever has been offered from the side of the prosecution for the said delay, and hence the same is fatal to the prosecution. The counsel also pointed out that the specimen impression of the seal or sample seal was not even provided in the property list, as per which the sample as well as the residue of the contraband were produced before the court. In short, the crux of the argument of the learned counsel for the appellant is that there is a patent flaw in the manner in which the seizure and sampling procedures were carried out in this case, and that the sample was not produced before the court in a foolproof manner.
7. 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. According to the Public Crl.A.280 OF 2014 :6:
2025:KER:48815 Prosecutor, since there was no delay in producing the sample before the court, there is no room for any manipulations or tampering. The learned Public Prosecutor further urged that the delay in conducting the investigation in this case has no serious bearing on the outcome of the case, especially when no prejudice is seen to have been caused to the accused due to the said delay.
8. 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 Inspector Excise Range, Kasargod, on 22.12.2005. 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 Mahazer prepared at the spot of detection contemporaneously was marked as Ext.P5.
9. The independent witness cited and examined by the prosecution to prove the alleged recovery of the contraband was examined as PW3. However, on examination before the court, Crl.A.280 OF 2014 :7:
2025:KER:48815 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 on the outcome of the case, it is to be noted that it is a common occurrence that the independent witnesses are turning hostile to the prosecution in almost all Abkari cases 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 an Abkari case is of little significance if the evidence of the official witnesses, including the detecting officer, is convincing and reliable. Notably, in the case at hand, even the accused is not having a case that the excise inspector who booked him in this case is having any sort of animosity or grudge towards him that would motivate the detecting officer to falsely implicate him in a case of this nature.
10. However, when a court is called upon to rely solely on the evidence of the detecting officer and the contemporary documents prepared by him, the court must act with much care and circumspection. It is incumbent upon the prosecution to Crl.A.280 OF 2014 :8:
2025:KER:48815 satisfy the court that all the procedural formalities relating to the search, seizure, and sampling of the contraband were carried out in foolproof manner, thereby ruling out any possibility of tampering. Nevertheless, a perusal of the seizure Mahazer prepared in this case and marked as Ext.P6 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 sample seal or specimen impression of the seal in the seizure Mahazer is certainly a circumstance to doubt the identity of the sample drawn and the identity of the sample that got analysed in the chemical examiner's laboratory.
11. Likewise, in Ext.P6 seizure Mahazar, nothing is mentioned about the procedures of sampling and sealing which was adopted. During the examination, PW1, the detecting officer, had not given any evidence regarding the nature of the seal used by him in sealing the sample, as well as the residue of the contraband seized in this case. Therefore, I have no hesitation in holding that the prosecution failed to prove that the seizure and sampling were done in a foolproof manner.
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12. More curiously, a perusal of the property list, which is a prime document as far as an Abkari case is concerned, reveals that the sample seal does not find a place in it also. Only when a sample seal or specimen impression of the seal is provided in the property list, the Thondi clerk who receives the property could compare the seal found on the sample as well as the Thondi articles produced before him with the sample provided in the property list. Therefore, the inaction on the part of the detecting officer in affixing a sample seal or specimen impression of the seal in the property list is also fatal to the prosecution, leaving room for allegations of tampering.
13. As rightly pointed out by the learned counsel for the petitioner, this case was detected on 22.12.2005, whereas the final report was laid only on 08.05.2012. There is a delay of more than five years in laying the charge sheet. Despite such an inordinate delay, no explanation whatsoever has been offered by the prosecution. It being an Abkari case, the main phase of the investigation would be practically over at the time of detection of the case itself. Therefore, I am at a loss to understand why such a lag had occurred in completing the remaining part of the Crl.A.280 OF 2014 :10:
2025:KER:48815 investigation in this case. The long delay in conducting the investigation in the absence of a sufficient explanation is fatal to the prosecution. In the above circumstances, it is found that 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 55(a) of the 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