Kerala High Court
Shibu , S/O.Karunakaran vs State Of Kerala on 7 July, 2025
Crl.Appeal No.141 of 2014 1 2025:KER:49443
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 7TH DAY OF JULY 2025 / 16TH ASHADHA, 1947
CRL.A NO. 141 OF 2014
CRIME NO.55/2009 OF Thiruvalla Excise Range Office,
Pathanamthitta
AGAINST THE ORDER/JUDGMENT DATED IN CP NO.82 OF 2010
OF JUDICIAL MAGISTRATE OF FIRST CLASS, THIRUVALLA ARISING
OUT OF THE ORDER/JUDGMENT DATED 07.02.2014 IN SC NO.457 OF
2011 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV
APPELLANT/ACCUSED:
SHIBU , S/O.KARUNAKARAN
PANAMPALLY HOUSE, KAVUMBHAGAM, THIRUVALLA,
PATHANAMTHITTA DISTRICT.
BY ADV SRI.C.S.MANU
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY
THE EXCISE INSPECTOR, RANGE OFFICE, THIRUVALLA,
(NOTICE TO WHOM MAY BE SERVED ON THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
ADV. SRI. ALEX M THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
02.07.2025, THE COURT ON 07.07.2025 DELIVERED THE
FOLLOWING:
Crl.Appeal No.141 of 2014 2 2025:KER:49443
JUDGMENT
This appeal has been preferred by the sole accused in S.C No.457 of 2011 on the file of Additional Sessions Court-IV, Pathanamthitta, challenging the judgment of conviction and order of sentence passed against him for an offence punishable under Section 55(a) of Abkari Act.
2. The prosecution allegation is that on 19.11.2009 at about 3 p.m., the accused was found transporting spirit in 8 white plastic cans containing 33 litres of spirit each in a Maruti Alto car bearing registration No.KL-3J-4332 in violation of provisions of Abkari Act and thereby committed an offence punishable under Section 55(a) of Abkari Act. 3. After completion of investigation, the final report was laid before the Judicial First Class Magistrate Court, Thiruvalla. On being satisfied that the case is one exclusively triable by the court of session, the learned Magistrate after complying with all formalities committed the case to the Court of Session, Pathanamthitta. The learned Sessions Judge after taking cognizance, made over the case for trial and disposal to Crl.Appeal No.141 of 2014 3 2025:KER:49443 Additional Sessions Court-IV, Pathanamthitta. On appearance of the accused before the trial court, the learned Additional Sessions Judge, after hearing both sides under Section 227 Cr.PC and perusing the records framed a written charge against the accused for an offence punishable under Section 55(a) of Abkari Act, to which he pleaded not guilty and claimed to be tried.
4. During trial PW1 to PW8 were examined and Exts.P1 to P19 were marked. After completion of the prosecution evidence the accused was questioned under Section 313 Cr.PC and on questioning, he denied all the incriminating circumstances brought on record and pleaded innocence. As it was not a fit case to acquit under Section 232 Cr.PC the accused was called upon to enter on his defence and to produce any evidence that he may have in support thereof. However, no evidence, whatsoever, was produced from the side of the accused. After trial, the learned Additional Sessions Judge found the accused guilty of an offence punishable under Section 55(a) of the Abkari Act, and he was convicted and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Crl.Appeal No.141 of 2014 4 2025:KER:49443 Rs.5,00,000/-. In default of payment of the fine, the accused was ordered to undergo simple imprisonment for one year. Aggrieved by the said judgment of conviction and order of sentence passed, the accused has preferred 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 would submit that the trial court convicted the accused without properly appreciating the facts and evidence brought out in this case. According to the learned counsel, the accused had no connection either with the contraband seized in this case or with the vehicle from which the same was recovered. It was contended that the accused was implicated in this case on account of mistaken identity. The counsel further urged that the search and seizure procedures were not done in a foolproof manner, thereby leaving open the possibility of tampering. 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 Crl.Appeal No.141 of 2014 5 2025:KER:49443 drawn at the spot of detection itself and was produced before the court on the very next day. According to the Public Prosecutor, since there was no delay in producing the sample before the court, there is no room for any manipulations or tampering.
7. As already stated, the allegation which the accused faces is that he had transported spirit in a car bearing registration No.KL-3J-4332. As per the prosecution allegation, ten plastic cans containing 33 litres of spirit each were detected from the said vehicle. When the Excise Inspector, Thiruvalla Excise range, who detected this case was examined as PW1, he deposed that on 19.11.2009 at 2.30 pm, while he was conducting vehicle inspection by standing near Nelladu Junction, he saw a Maruti Alto car bearing registration No.KL-3J-4332 coming from Kozhencherry Bhagam. He signalled to stop the said vehicle by showing his hand. However, the driver of the car did not stop and instead drove away the car. Then he, along with the Excise party, chased the said car, and when they reached in front of the house of one Rajan Mathew, the driver stopped the car and fled from the spot. Crl.Appeal No.141 of 2014 6 2025:KER:49443 Although the excise party attempted to apprehend the accused, they could not succeed. Thereafter, PW1 conducted a search of the vehicle. On inspection, 8 plastic cans containing approximately 33 litres of spirit were found inside each cans. When the dashboard of the car was checked, an insurance certificate, a bank passbook, a sale agreement and a driving licence were also found. According to PW1, on verification of the insurance certificate, it was revealed that the car was insured in the name of one Muraleedharan Nair. The sale agreement recovered from the vehicle revealed that it pertained to the sale of the said car, and it was executed by one Mathew George of Changanacherry in favour of P.K.Shibu, the accused in this case. The bank passbook found in the car was in the joint names of the accused and his wife. The driving licence found in the car was also in the name of the accused. During examination, PWI narrated the entire sequence of events that happened in this case and also the procedures of search and seizure carried out by him, including the drawing of sample and sealing the same.
8. From the rival contentions advanced, it is gatherable Crl.Appeal No.141 of 2014 7 2025:KER:49443 that the core issue in this appeal revolves around the identity of the accused. It is undisputed that when an offence is committed, the prime aspect for investigation is to find out who is the perpetrator of the crime. Likewise, during the trial, the prosecution is duty-bound to prove that the accused standing trial is, in fact, the person who committed the crime. 9. Given the above, while coming to the case at hand, it can be seen that this is not a case in which the accused was arrested from the spot at the time of detection of the contraband. The evidence of PW1 itself shows that while he was conducting vehicle inspection by standing on the side of the road, the car involved in this case approached, and when he signalled to stop it, the driver accelerated and drove away without stopping it. Though the detecting officer and his team chased the vehicle and made an attempt to apprehend the driver, they were unsuccessful, as the driver stopped the case and fled from the spot.
10. The sequence of events narrated above indicates that the detecting officer did not get an opportunity to identify the person who was driving the car. At this juncture, it is pertinent Crl.Appeal No.141 of 2014 8 2025:KER:49443 to note that the identifying features of the driver are not mentioned in the seizure mahazar prepared in this case. Furthermore, the detecting officer does not even have a case that he had prior acquaintance with the driver. It is germane to note that the accused was not arrested in this case at any stage during the investigation. There was no occasion for witnesses to see and identify the accused. More pertinently, in the evidence of PW1, it is nowhere stated that he saw the face of the accused at the spot.
11. However, I am not unmindful of the fact that the detecting officer has a definite case that after the driver fled from the scene, he conducted an inspection of the vehicle, and in the inspection, one RC book, a bank passbook, an insurance certificate, and a driving licence were recovered. From the evidence it is established that the driving licence and the passbook found in the car were in the name of the accused. Significantly, the accused also does not have a case that the said passbook and driving licence do not belong to him. Rather, his case is that the detecting officer in this case who was nurturing animosity towards him had trespassed into his house Crl.Appeal No.141 of 2014 9 2025:KER:49443 and took away certain documents from his house and foisted the present case against him. However, no documents whatsoever have been produced from the side of the accused to show that he had lodged any complaint regarding the above-said high-handed acts of the excise officer so far. Therefore, I am of the view that the case of the accused in the above regard lacks credulity.
12. Nevertheless, even assuming that the documents were recovered from the vehicle the same is not a reason to enter into an automatic inference that it was the accused who transported the contraband in the car. When there is no direct evidence to show that the accused was the person who drove the vehicle at the relevant time, mere recovery of documents bearing the name of the accused from the vehicle is not conclusive proof of his involvement in the crime unless it is corroborated by other substantive evidence. A court could not be called upon to make inferences regarding the identity of the accused. On the other hand, it is the duty of the prosecution to adduce positive evidence to show that it was the accused who committed the offence. In the case at hand, such evidence is Crl.Appeal No.141 of 2014 10 2025:KER:49443 conspicuously lacking, and it is unsafe to enter into a conclusion that it was the accused and no other who transported the contraband in the car.
13. Further, when a court is called upon to rely solely on the evidence of the detecting officer to prove the detection, it is incumbent upon the prosecution to satisfy the court that all procedures relating to the search, seizure, and sampling of the contraband were carried out in a tamper-proof manner. Nevertheless, in the case at hand, a bare perusal of Ext.P5 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 find a place in it. 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 that was ultimately analyzed by the chemical examiner. Likewise, in Ext.P5 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, did not state anything about the nature of the seal used Crl.Appeal No.141 of 2014 11 2025:KER:49443 for sealing the sample as well as the residue of the contraband allegedly seized.
14. As perusal of the property list, which is a crucial document in prosecution under Abkari Act, reveals that the sample seal does not find a place in it. It is only when the sample seal or specimen impression of the seal is provided in the property list, that the Thondi clerk who receives the property can properly verify the seal found on the sample as well as on the Thondi articles produced before the court and compare with the sample provided in the property list. Therefore, the failure on the part of the detecting officer to affix the sample seal or include its specimen impression in the property list is fatal to the prosecution case, leaving ample room for allegations of tampering and it creates a doubt on whether the sample reached the court is in fact the same sample that was drawn from the alleged contraband. In the above circumstances, it is found that the prosecution has failed to prove the case against the accused beyond a reasonable doubt.
Crl.Appeal No.141 of 2014 12 2025:KER:49443 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 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