Kerala High Court
Pavadas @ Das @ George vs State Of Kerala on 10 July, 2025
2025:KER:50572
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 10TH DAY OF JULY 2025 / 19TH ASHADHA, 1947
CRL.A NO. 150 OF 2014
AGAINST THE ORDER/JUDGMENT DATED 25.01.2014 IN SC
NO.314 OF 2013 OF III ADDITIONAL DISTRICT & SESSIONS COURT,
THODUPUZHA
APPELLANT/ACCUSED:
PAVADAS @ DAS @ GEORGE
AGED 65 YEARS
S/O.CHELLAYYA, ASARIPARAMBIL HOUSE, KOLLAPARA COLONY BHAGAM,
KURISUPARA KARA, ANAVIRATTY VILLAGE, IDUKKI DISTRICT.
BY ADV SRI.LATHEESH SEBASTIAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION
HIGH COURT OF KERALA, ERNAKULAM - 682 031
BY ADV.
SMT.N.S.HASNA MOL, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
09.07.2025, THE COURT ON 10.07.2025 DELIVERED THE FOLLOWING:
CRL.A. No. 150 OF 2014
:2:
2025:KER:50572
JUDGMENT
The sole accused in S.C.No.314/2013, on the file of Additional Sessions Court-III, Thodupuzha, has preferred this appeal challenging the judgment of conviction and order of sentence passed against him for the offence punishable under Section 55(i) of the Abkari Act.
2. The prosecution allegation in brief is that, on 25.08.2012, at 7.10 p.m., on the side of the Kurisupara-Adimaly public road, the accused was found in possession of Indian-made liquor for the purpose of sale in contravention of the provisions of the Abkari Act, and thereby committed an offence punishable under Section 55(a) & 55(i) of the Abkari Act.
3. Upon completion of the investigation, the final report was laid before the Judicial First Class Magistrate Court, Adimaly. 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, Thodupuzha, under Section 209 of Cr.PC. The learned Sessions Judge, having taken cognizance of the offence, made over the case to the Additional Sessions Court-III, Thodupuzha for trial and CRL.A. No. 150 OF 2014 :3:
2025:KER:50572 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 a perusal of the records, framed a written charge against the accused for an offence punishable under Section 55(i) 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 four witnesses as PW1 to PW4, and marked Exts.P1 to P10 and MO1 to MO5 were 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 in evidence. On finding that this is not a case of no evidence and hence 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(i) of the Abkari Act, and he was CRL.A. No. 150 OF 2014 :4:
2025:KER:50572 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 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 he was falsely implicated in this case. According to the counsel, the accused had no connection whatsoever with the liquor allegedly seized in this case, and he was implicated on the basis of surmises and conjectures. The learned counsel submitted that if at all the prosecution case is believed, such an offence under Section 55(i) of the Abkari Act would not attract, as there is no evidence for sale. It was urged that the ingredients to attract an offence under Section 55(i) of the Abkari Act are lacking in this case. The learned counsel also assailed the seizure and the sampling of the contraband done in this case on the grounds of CRL.A. No. 150 OF 2014 :5:
2025:KER:50572 noncompliance with formalities while carrying out those procedures. According to him, the seizure and sampling procedures were not done in a foolproof manner without leaving room for tampering and manipulations. The learned counsel urged that there is inordinate, unexplained delay in producing the sample as well as the residue of the liquor before the court, and hence, there is every possibility of tampering. The counsel also highlighted the delay that occurred in producing the sample before the chemical examiner's laboratory after the same was dispatched with a police constable from the court. According to him, the link evidence regarding the safe custody of the contraband is snapped in this case, and hence it could not be said that the sample collected from the spot of detection is the very same one that reached the hands of the chemical examiner for analysis.
8. Per contra, the learned Public Prosecutor would submit that all the procedural formalities to rule out allegations of manipulations and tampering in the future are scrupulously complied with in this case. According to the learned Public Prosecutor, the Mahazar, which was prepared contemporaneously CRL.A. No. 150 OF 2014 :6:
2025:KER:50572 with the detection of the contraband, bears the specimen impression of the seal used for sealing the sample. Moreover, it was pointed out that in the forwarding note as well as in the property list, the sample seal finds a place, and the contention of the learned counsel for the appellant, sticking on procedural irregularities, is baseless.
9. A perusal of the record reveals that, 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 Sub Inspector of Police, Adimaly, on 25.08.2012. When the detecting officer was examined as PW4, he narrated the entire sequence of events relating to the detection of the liquor and its seizure procedures. The seizure Mahazar prepared contemporaneous with the detection of the contraband was marked as Ext. P1.
10. 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 CRL.A. No. 150 OF 2014 :7:
2025:KER:50572 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 or police officials bore any grudge or animosity towards the accused that would motivate him to falsely implicate the accused in a criminal case like this nature.
11. However, when a court is called upon to rely solely on the evidence of the official witnesses, 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 CRL.A. No. 150 OF 2014 :8:
2025:KER:50572 tampering. In the case at hand, Ext.P1 Mahazar, the specimen impression of the seal used for sealing the sample is seen affixed. Similarly, the specimen impression of the seal finds a place in the forwarding note as well. Therefore, prima facie, it could not be said that there are serious lapses on the part of the investigating officer in drawing the sample and sealing it.
12. However, as revealed from the property list, which is marked as Ext.P5, the sample allegedly drawn from the liquor seized from the possession of the accused was produced before the court only on 05.09.2012. Virtually, there is a delay of 11 days in producing the sample before the court. Though the said delay is a long one, no explanation whatsoever has been offered from the side of prosecution for the said delay. The unexplained delay in producing the sample, as well as the residue of the liquor before the court, is certainly fatal to the prosecution. Particularly when there is no evidence to show that the sample was in safe custody till the same was produced before the court. Delay in producing the sample before the court will leave room for allegations of manipulation and tampering. Therefore, I have no hesitation in holding that the accused is entitled to get an order of CRL.A. No. 150 OF 2014 :9:
2025:KER:50572 acquittal on the said sole ground.
13. Another crucial aspect pointed out by the learned counsel for the appellant is that there is a delay in producing contraband before the chemical examiner's laboratory after the same had been entrusted to a police constable from the court. A perusal of the covering letter, which forms part of Ext.P6, shows that the sample was entrusted with a police constable for producing before the chemical examiner's laboratory on
05.09.2012. However, the forensic science laboratory report, which is marked as Ext.P10, shows that the sample reached the hands of the chemical examiner only on 11.09.2012. The delay in producing the sample before the chemical examiner's laboratory after the same had been entrusted to a police constable also raises suspicion of manipulations and tampering. Given the same, it can be seen that the link evidence regarding safe custody is snapped in this case. Therefore, it is liable to be held that there is no guarantee that the sample drawn from the liquor allegedly seized from the accused is the very same one that reached the hands of the chemical examiner for analysis.
In the result, the appeal is allowed and the judgment of CRL.A. No. 150 OF 2014 :10:
2025:KER:50572 conviction and the order of sentence passed against the appellant/accused for the offence punishable under Section 55(i) of the 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