Kerala High Court
Prasannan vs State Of Kerala on 9 July, 2025
2025:KER:50193
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. 42 OF 2014
CRIME NO.25/2008 OF KONNY EXCISE RANGE, Pathanamthitta
AGAINST THE ORDER/JUDGMENT DATED IN CP NO.44 OF
2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-II,PATHANAMTHITTA ARISING OUT OF THE ORDER/JUDGMENT
DATED 03.01.2014 IN SC NO.429 OF 2012 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT - II,PATHANAMTHITTA
APPELLANT/ACCUSED:
PRASANNAN, AGED 52 YEARS, S/O.THANKAPPAN,
RESIDING AT PATHISSERIL HOUSE, THAZHAM,
MALAYALAPPUZHA VILLAGE, KONNI TALUK,
PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.V.SETHUNATH
SRI.S.JUSTUS
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SMT. N.S. HASNA MOL, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 08.07.2025, THE COURT ON 09.07.2025 DELIVERED THE
FOLLOWING:
CRL.A. No. 42 OF 2014 :2: 2025:KER:50193
JUDGMENT
The sole accused in S.C.No.429/2012, on the file of Additional District and Sessions Court-II, Pathanamthitta, has preferred this appeal challenging the judgment of conviction and order of sentence passed against him for the offence punishable under Section of the Abkari Act. 2. The prosecution allegation in brief is that, on 04.04.2008, at 8.45 a.m., at Pathissery junction, Cheenkalthadam road, the accused was found in possession of 2 litres of arrack in a can having a capacity of 2½ litres in contravention 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. Upon completion of the investigation, the final report was laid before the Judicial First Class Magistrate Court-II, Pathanamthitta. 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, Pathanamthitta, under Section 209 of Cr.PC. The learned Sessions Judge, CRL.A. No. 42 OF 2014 :3: 2025:KER:50193 having taken cognizance of the offence made over the case to the Additional Sessions Court-II, Pathanamthitta for trial and disposal. On the 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 upon 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 five witnesses as PW1 to PW5, and marked Exts.P1 to P8. 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 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.
CRL.A. No. 42 OF 2014 :4: 2025:KER:50193 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 was convicted and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.1 lakh. In default of payment of the fine, the accused was ordered to undergo simple imprisonment for a further period of three months. 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 CRL.A. No. 42 OF 2014 :5: 2025:KER:50193 drawn from the contraband seized in this case. It is pointed out that, in the Mahazar, property list as well as in the forwarding note, 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 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 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 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, Konni Excise Range on 04.04.2008. When the detecting officer was CRL.A. No. 42 OF 2014 :6: 2025:KER:50193 examined as PW2, he 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. P1.
9. The independent witnesses cited by the prosecution to prove the alleged seizure were examined as PW1 and PW4. 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. 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 CRL.A. No. 42 OF 2014 :7: 2025:KER:50193 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 a 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 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 got 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 CRL.A. No. 42 OF 2014 :8: 2025:KER:50193 court, PW2, 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. Moreover, a perusal of the forwarding note, which was marked as Ext.P6, the sample seal or specimen impression of the seal does not find a place therein. The purpose of affixing the seal in the forwarding note is to enable the chemical examiner to compare the seal found on the sample with the specimen seal or sample seal provided in the forwarding note. Only upon such comparison, the chemical examiner can confirm that the sample received for analysis is the same one forwarded from the court. In Rajamma v. State of Kerala [2014 (1) KLT 506], this Court held that in the absence of convincing evidence as to the production of the specimen impression of the seal or the sample seal to the chemical examiner, no evidentiary value can be attributed to the chemical analysis report.
13. Therefore, I have no hesitation in holding that the prosecution failed to prove that the procedures of seizure and CRL.A. No. 42 OF 2014 :9: 2025:KER:50193 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 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 ncd