Kerala High Court
K.G. Rajan vs State Of Kerala on 10 July, 2025
2025:KER:50573
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. 418 OF 2014
CRIME NO.33/2007 OF Kalpetta Excise Range Office, Wayanad
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.223 OF 2010
OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II & RENT
CONTROL APPELLATE AUTHORITY, KALPETTA
APPELLANT/ACCUSED:
K.G. RAJAN, S/O. GOVINDAN, AGED 56 YEARS,
CHERIYA NARIPPARA COLONY, VARAMPATTA P.O,
PADINHARATHARA, WYNAD, KALPETTA - 673 122.
BY ADV SRI.A.C.DEVY
RESPONDENT/STATE:
THE STATE OF KERALA REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, KOCHI -682 031.
BY SMT. N.S. HASNA MOL, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
08.07.2025, THE COURT ON 10.07.2025 DELIVERED THE FOLLOWING:
CRL.A. No. 418 of 2014
:2:
2025:KER:50573
JUDGMENT
The 1st accused in S.C.No.223/2010, on the file of Additional Sessions Court-II, Kalpetta, Wayanad, has preferred this appeal challenging the judgment of conviction and the 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 12.09.2007, at 12.30 p.m., inside the house of the 2nd accused situated at Cheriyanarippara Colony, at Aalakkandy, the first and second accused were found in possession of 76 litres of wash, and utensils for 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 completion of the investigation, the final report was laid before the Judicial First Class Magistrate Court-II, Mananthavady. 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, Wayanad, under Section 209 of Cr.PC. The learned Session Judge, having taken cognizance of the offence CRL.A. No. 418 of 2014 :3: 2025:KER:50573 made over the case to the Additional Sessions Court-II, Kalpetta, for trial and disposal. While the matter was pending before the trial court, the second accused was reported dead and the charge against him was abated. Thereafter, the learned Additional Session 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 first accused for an offence punishable under Section 55(g) of the Abkari Act. When the charge was read over and explained to the 1st 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 seven witnesses as PW1 to PW7 and marked Exts.P1 to P10. 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. From the side of the accused, no evidence whatsoever was produced.
CRL.A. No. 418 of 2014:4:
2025:KER:50573 5. After trial, the accused was found guilty of the offence punishable under section 55(g) of the Abkari Act, and he was convicted and sentenced to undergo rigorous imprisonment for one year 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 surmises and conjectures. According to the counsel in the case at hand, there is absolutely no material to show that the sample of the 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 as well as in the property list, the CRL.A. No. 418 of 2014 :5: 2025:KER:50573 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 records 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, Kalpetta, on 12.09.2007. When the detecting officer was examined as PW1, he 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 was marked CRL.A. No. 418 of 2014 :6: 2025:KER:50573 as Ext. P4.
9. The independent witness cited by the prosecution to prove the alleged seizure was examined as PW6. However, during examination, PW6 turned hostile to the prosecution by deposing that he did not witness the incident in this case. While considering the question whether the hostility shown by the independent witness 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 CRL.A. No. 418 of 2014 :7: 2025:KER:50573 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.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 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 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. Therefore, the failure on the part of the detecting officer to affix the sample seal or include its specimen impression in Ext.P4 mahazar is fatal to CRL.A. No. 418 of 2014 :8: 2025:KER:50573 the prosecution case, leaving ample room for allegations of tampering and it creates 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.
12. 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(g) of the Abkari Act is set aside and he is acquitted. Fine amount, if CRL.A. No. 418 of 2014 :9: 2025:KER:50573 any, has been deposited by the appellant/accused, the same shall be refunded to him in accordance with law.
Sd/-
JOBIN SEBASTIAN
JUDGE
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