Kerala High Court
M.Udayan vs State Of Kerala on 8 July, 2025
2025:KER:49807
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. 441 OF 2014
CRIME NO.50/2008 OF HOSDURG EXCISE RANGE OFFICE, KASARGOD
AGAINST THE JUDGMENT DATED 26.04.2014 IN SC NO.427 OF
2011 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT- I,
KASARAGOD
APPELLANT/ACCUSED:
M.UDAYAN
AGED 30 YEARS
S/O M.SANKARAN,
RESIDING AT MAILATTY HOUSE,
PANAYAL VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT.
BY ADVS.
SRI.T.MADHU
SMT.C.R.SARADAMANI
RESPONDENT/COMPLAINANT-STATE:
STATE OF KERALA
THROUGH THE EXCISE INSPECTOR,
HOSDURG EXCISE RANGE OFFICE,
KASARAGOD DISTRICT,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.
ADV.
SRI.RENJITH GEORGE, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
07.07.2025, THE COURT ON 08.07.2025 DELIVERED THE FOLLOWING:
CRL.A. No. 441 OF 2014
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2025:KER:49807
JUDGMENT
The sole accused in S.C.No.427/2011, 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 8(2) r/w 8(1) of the Abkari Act. 2. The prosecution allegation in brief is that, on 06.09.2008, at 12.20 hrs, the accused was found in possession and transit of 200 packets of arrack containing 100ml each in a scooter bearing registration No.KL-14-A-8974, though Mailatti-Koottakani road in Panayal village, 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-II, Hosdurg. 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 learned Sessions Judge, after taking cognizance made over the CRL.A. No. 441 OF 2014 :3: 2025:KER:49807 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 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 examined six witnesses as PW1 to PW6, and marked Exts.P1 to P12. 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. But no evidence, whatsoever, was adduced from the side of the accused.
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. 441 OF 2014 :4: 2025:KER:49807 was convicted and sentenced to undergo simple imprisonment for a period of 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 list, the sample seal or specimen impression of the seal allegedly used is nowhere affixed. In short, the crux of the argument of the CRL.A. No. 441 OF 2014 :5: 2025:KER:49807 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 record 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 Preventive Officer attached to Excise Enforcement and Anti-Narcotics Special Squad, Kasaragod, on 06.09.2008. 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 contemporaneous with the detection of the contraband was marked as Ext. P4.
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9. The independent witnesses cited by the prosecution to prove the alleged seizure were examined as PW3 and PW6. However, during examination, PW1 and PW6 turned hostile to the prosecution by deposing that they did not witness the incident in this case. While considering the question whether the hostility shown by the independent witnessess 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 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 CRL.A. No. 441 OF 2014 :7: 2025:KER:49807 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 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 were 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 CRL.A. No. 441 OF 2014 :8: 2025:KER:49807 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.
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 CRL.A. No. 441 OF 2014 :9: 2025:KER:49807 circumstances, it is found that the prosecution has not succeeded in proving the case against the accused beyond 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 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