Kerala High Court
Wilson vs State Of Kerala Rep.By The P.P on 10 July, 2025
CRL.A NO. 257 of 2010
:1:
2025:KER:50570
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. 257 OF 2010
AGAINST THE ORDER/JUDGMENT DATED 11.01.2010 IN SC
NO.652 OF 2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II,
PATHANAMTHITTA
APPELLANT/ACCUSED:
WILSON, S/O. RAMAYYA NADAR,
LAYAM NO.45, HARRISON PLANTATION EAST DIVISION,
KONNI, ARUVAPPULAM VILLAGE,, KOZHENCHERRY TALUK,
PATHANAMTHITTA.
BY ADV SRI.SAJJU.S
RESPONDENT:
STATE OF KERALA REP.BY THE THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SMT. N.S. HASNA MOL, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
09.07.2025, THE COURT ON 10.07.2025 DELIVERED THE FOLLOWING:
CRL.A NO. 257 of 2010
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2025:KER:50570
JUDGMENT
The sole accused in S.C.No.652/2006, on the file of the Additional District and Sessions Court (Adhoc-II), Pathanamthitta, has preferred this appeal challenging the judgment of conviction and the order of sentence passed against him 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 10.07.2003 at 11.15 a.m., at the road in front of layam No.24, in an estate near Puthukkad Pattolam junction, the accused was found in possession of 10 litres of arrack in a can having a capacity of 10 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, having taken cognizance of the offence, made over the case to the Additional Sessions Court-II, CRL.A NO. 257 of 2010 :3: 2025:KER:50570 Pathanamthitta 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 upon a 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. MO1 was exhibited and identified. A contradiction in the 161 statement of one of the prosecution witnesses was marked as Ext.D1. After the completion of prosecution evidence, the accused was questioned under Section 313 of 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 was adduced.
CRL.A NO. 257 of 2010 :4: 2025:KER:50570 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 two years 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 six 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. The learned counsel vehemently urged that the Assistant Excise Officer who detected the case, registered the crime and occurrence report and conducted the major part of the investigation in this case was not an Abkari officer at the relevant time, and hence, the entire proceedings in this case, including trial, are vitiated. According to CRL.A NO. 257 of 2010 :5: 2025:KER:50570 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 allegedly seized in this case. It is pointed out that, in the Mahazar 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 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 in the chemical examiner's 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 followed in this case, and hence the impugned judgment warrants 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 Assistant Excise Inspector, Excise Range, Konni on 10.07.2003. CRL.A NO. 257 of 2010 :6: 2025:KER:50570 When the detecting officer was 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 by PW1, contemporaneous with the detection of the contraband, was marked as Ext. P3.
9. Evidently, it was the Assistant Excise Inspector (PW1) who detected and registered the present case against the accused and conducted the major part of the investigation in this case. It was he who prepared the property list and produced the thondi articles before the court along with the accused. The forwarding note was also prepared by him. He interrogated the witnesses and recorded their statements. Undisputedly, an Assistant Excise Inspector was not an Abkari Officer as defined under the Abkari Act during the period of detection of this case, and hence it is liable to be held that this case was detected and registered by him without jurisdiction. Hence, the cognizance taken and the trial conducted in this case are also vitiated. The Assistant Inspectors were notified as Abkari officers by the Government vide notification SRO No.361/2009 dated 08.05.2009. In this case, the offence was detected on 10.07.2003. Therefore, the abovesaid notification will not legalise the detection, arrest, and CRL.A NO. 257 of 2010 :7: 2025:KER:50570 seizure made by PW1, the Assistant Excise Inspector. The crime and occurrence report registered by an incompetent officer will vitiate the prosecution.
10. Moreover, in the case at hand, both the independent witnesses examined by the prosecution to prove the detection of this case turned hostile to the prosecution by deposing that they did not witness the incident in this case. I am not oblivious that the court can act upon the evidence of official witnesses to sustain a conviction in an Abkari case if their evidence is convincing and reliable. However, when a court is called upon to rely solely on the evidence of the detecting officer and other 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 tampering. Nevertheless, in the case at hand, a bare perusal of Ext.P3 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 it. The absence of a sample seal or specimen impression of the seal in the seizure is certainly a circumstance to doubt the CRL.A NO. 257 of 2010 :8: 2025:KER:50570 identity of the sample drawn and the identity of the sample that was analysed by the chemical examiner.
11. Moreover, a perusal of the forwarding note, which was marked as Ext.P7, 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.
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 CRL.A NO. 257 of 2010 :9: 2025:KER:50570 examined in the chemical examiner's laboratory. The upshot of the above discussion is that since the case was detected and registered by an Assistant Excise Inspector who was not vested with the power under the Abkari Act to perform such functions, the subsequent proceedings in this case, including trial, are vitiated. Hence, the accused is liable to be acquitted.
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