Kerala High Court
Yogesh vs Excise Inspector on 8 July, 2025
2025:KER:49808
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 8TH DAY OF JULY 2025 / 17TH ASHADHA, 1947
CRL.A NO. 465 OF 2014
AGAINST THE JUDGMENT DATED 22.05.2014 IN SC NO.381 OF
2011 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - I,
KASARAGOD
APPELLANT/ACCUSED:
YOGESH
AGED 34 YEARS
S/O. BALAKRISHNA SHETTY,
HOSAMANA VEEDU, BHAGAVATHI ROAD,
MAJUBAYAL VILLAGE, KASARAGODE TALUK.
BY ADV SRI.T.G.RAJENDRAN
RESPONDENT/COMPLAINANT & STATE:
1 EXCISE INSPECTOR
KUMBLA EXCISE RANGE-671321.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
ADV.
SRI.RENJITH GEORGE, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING
07.07.2025, THE COURT ON 08.07.2025 DELIVERED THE FOLLOWING:
CRL.A. No. 465 OF 2014
:2:
2025:KER:49808
JUDGMENT
The sole accused in S.C.No.381/2011, on the file of Additional Sessions Court-I, Kasaragod, 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 55(a) of the Abkari Act.
2. The prosecution allegation in brief is that, on 09.03.2007, at 6.30 a.m., on the National Highway in Manjeshwar village, the accused was found in possession and transit of 14 bottles of Indian-made foreign liquor containing 180ml each, which was exclusively meant for sale in Karnataka State in violation of the provisions of the Abkari Act and thereby committed an offence punishable under Section 55(a) of the Abkari Act.
3. On completion of the investigation, the final report was submitted before the Judicial First Class Magistrate Court-I, Kasaragod. 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 Session, Kasaragod, under Section 209 of Cr.PC. The CRL.A. No. 465 OF 2014 :3: 2025:KER:49808 learned Sessions Judge, after taking cognizance made over the case to the Additional Sessions Court-I, Kasaragod, 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 perusal of the 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. The prosecution in its bid to prove the charge levelled against the accused has altogether examined three witnesses as PW1 to PW3, and marked Exts.P1 to P11. 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, but no documentary evidence was adduced.
CRL.A. No. 465 OF 2014 :4: 2025:KER:49808 5. 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 simple imprisonment for 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 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 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 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 as well as in the property CRL.A. No. 465 OF 2014 :5: 2025:KER:49808 list, the sample seal or specimen impression of the seal allegedly used is nowhere affixed. In short, the crux of the 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. 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 and hence warrants no interference.
8. A perusal of the records reveal 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 Excise Inspector, Kumbala, on 09.03.2007. 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 Mahazar prepared contemporaries with the detection of the contraband CRL.A. No. 465 OF 2014 :6: 2025:KER:49808 was marked as Ext. P4.
9. As revealed from the records, no independent witnesses were examined from the side of the prosecution to prove the alleged recovery of the contraband. However, non-examination of an independent witness alone is not a reason to record an acquittal in an Abkari case if the evidence of the official witness, particularly the evidence of the detecting officer, is 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 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 foolproof manner, thereby ruling out any possibility of tampering. Nevertheless, in the case at hand, a bare perusal of Ext.P4 Mahazar reveals that neither the sample seal nor the specimen impression of the seal allegedly used by the detecting CRL.A. No. 465 OF 2014 :7: 2025:KER:49808 officer for sealing the sample does find 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.P4 seizure Mahazar, nothing is mentioned about the procedures of sampling and sealing which was adopted. During the examination before the court, PW1, 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 the contraband allegedly seized in this case.
12. As perusal of the property list, which is marked as Ext.P7 and is a crucial document in a 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 CRL.A. No. 465 OF 2014 :8: 2025:KER:49808 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.
13. 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 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 55(a) CRL.A. No. 465 OF 2014 :9: 2025:KER:49808 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
ANS