Kerala High Court
Sindhu vs State Of Kerala on 9 July, 2025
2025:KER:50191
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 9TH DAY OF JULY 2025 / 18TH ASHADHA, 1947
CRL.A NO. 1150 OF 2009
AGAINST THE ORDER/JUDGMENT DATED 01.06.2009 IN SC
NO.123 OF 2007 OF ADDITIONAL SESSIONS COURT (ADHOC)-II,
KOZHIKODE
APPELLANT/ACCUSED:
SINDHU, W/O. RAMANKUTTY,
KAVILAM KANHIRATHINGAL HOUSE,
KUNNAMANGALAM AMSOM DESOM, KOZHIKODE.
BY ADV SHRI.P.V.ANOOP
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY SMT. N.S. HASNAMOL, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
08.07.2025, THE COURT ON 09.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
The sole accused in S.C.No.123/2007, on the file of Additional Sessions Court, Kozhikode (Adhoc-II), has preferred this appeal challenging the judgment of conviction and order of sentence passed against him for the offence punishable under Section 55(g) of the Abkari Act.
2. The prosecution allegation, in brief, is that, on 22.09.2005, the accused was found in possession and transmit of 10 litres of wash in a pot through the road in front of the house of one Balan Nair at Chathankavu, for the purpose of brewing arrack in contravention of the provisions of the Abkari Act, and thereby committed an offence punishable under Section 55(g) of the Abkari Act.
3. Upon conclusion of the investigation, the final report was laid before the Judicial First Class Magistrate Court, Kunnamangalam. 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, Kozhikode, under Section 209 of Cr.PC. The learned Session Judge, having taken cognizance of the offence CRL.A. No. 1150 OF 2009 :3: 2025:KER:50191 made over the case to the Additional Sessions Court (Adhoc-II), Kozhikode, for trial and disposal. On the appearance of the accused before the trial court, the learned Additional Session Judge, after hearing both sides under Section 227 of Cr.P.C. and upon perusal of the records, framed a written charge against the accused for an offence punishable under Section 55(g) 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 five witnesses as PW1 to PW5, and marked Exts.P1 to P5. MO1 was exhibited and identified. After the completion of prosecution evidence, the accused was questioned under Section 313 Cr.P.C., during which he denied all the incriminating materials brought out against him. 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 55(g) of the Abkari Act, and he was CRL.A. No. 1150 OF 2009 :4: 2025:KER:50191 convicted and sentenced to undergo rigorous 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 rigorous imprisonment for a further period of six months. Aggrieved by 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 wash 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, the sample seal or specimen impression of the seal allegedly used is nowhere affixed. The learned counsel further pointed out that the property list as per CRL.A. No. 1150 OF 2009 :5: 2025:KER:50191 which the thondi articles, as well as the sample, were produced before the court was not produced and marked in evidence in this case, and the same is fatal to the prosecution. 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 rendering no guarantee that the sample drawn from the spot as well as reached for examination in the chemical examination laboratory is one and the same 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 warrant no interference.
8. A perusal of the record 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 Excise Inspector, Kunnamangalam Excise Range, on 22.09.2005. When the detecting officer was examined as PW4, he narrated the entire sequence of events leading to the detection of the CRL.A. No. 1150 OF 2009 :6: 2025:KER:50191 contraband and its seizure procedures. The seizure Mahazar prepared contemporaneous with the detection of the contraband was marked as Ext. P1.
9. The independent witnesses cited by the prosecution to prove the alleged seizure were examined as PW2 and PW3. However, during examination, both of them 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 witnesses 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. 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, particularly when, 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.
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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.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 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 analyzed by the chemical examiner.
11. Likewise, in Ext.P1 seizure Mahazar, nothing is mentioned about the procedures of sampling and sealing which were adopted. During the examination before the court, PW4, 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. CRL.A. No. 1150 OF 2009 :8: 2025:KER:50191
12. A perusal of the record further reveals that the property list as per which the thondi articles and the sample were produced before the court is not seen marked in evidence in this case. It is highly dubious why such a crucial document is not marked in evidence. Only when the property list is marked in evidence, this court can verify the date of production of the sample, details of the items produced, etc. Therefore, I have no hesitation in holding that the non production and marking of the property list in evidence is also fatal to the prosecution and the same alone is a ground for acquittal.
13. In short, 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 ultimately 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 reasonable doubt.
In the result, the appeal is allowed and the judgment of CRL.A. No. 1150 OF 2009 :9: 2025:KER:50191 conviction and the order of sentence passed against the appellant/accused for the offence punishable under Section 55(g) 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 ncd