Kerala High Court
Shihabudheen vs State Of Kerala on 11 July, 2025
CRL.A. No. 495 OF 2014 1 2025:KER:51061
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 11TH DAY OF JULY 2025 / 20TH ASHADHA, 1947
CRL.A NO. 495 OF 2014
CRIME NO.31/2007 OF Sulthanbathery Excise Range Office,
Wayanad
AGAINST THE ORDER/JUDGMENT DATED 31.12.2011 IN CP
NO.28 OF 2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS
,SULTHANBATHERY ARISING OUT OF THE ORDER/JUDGMENT DATED
31.05.2014 IN SC NO.4 OF 2012 OF ADDITIONAL DISTRICT
COURT & SESSIONS COURT - II, KALPETTA
APPELLANT/ACCUSED:
SHIHABUDHEEN, AGED 33 YEARS
S/O UNNIMOIDEEN, PUTHOOTHARA HOUSE, CHETTIYARAMMAL
DESOM, NILAMBUR TALUK, WANDOOR VILLAGE, MALAPPURAM
BY ADVS.
SHRI.V.V.SURENDRAN
SRI.P.A.HARISH
RESPONDENTS/COMPLAINANT AND STATE:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM
2 THE EXCISE RANGE INSPECTOR
SULTHAN BATHERI RANGE, WAYANADU - 673 592.
By SRI.ALEX M.THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR
HEARING ON 10.07.2025, THE COURT ON 11.07.2025
DELIVERED THE FOLLOWING:
CRL.A. No. 495 OF 2014 2 2025:KER:51061
JUDGMENT
The sole accused in S.C.No.4/2012, on the file of Additional Sessions Court-II, Kalpetta, Wayanad has preferred this appeal challenging the judgment of conviction and order of sentence passed against him for the offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution allegation in brief is that, on 31.05.2007, at 09.30 am., the accused was found in possession of 460 litres of spirit concealed in a secret chamber of the car bearing Registration No. KL-11D-8880, transported from the State of Karnataka to Kerala, in contravention of the provisions of the Abkari Act, and thereby committed an offence punishable under Section 55(a) of the Abkari Act.
3. Upon conclusion of the investigation, the final report was laid before the Judicial First Class Magistrate Court-I, Sulthanbatheri. Being satisfied that the case is one exclusively triable by a court of Session, the learned CRL.A. No. 495 OF 2014 3 2025:KER:51061 Magistrate, after complying with all legal formalities, committed the case to the Court of Session, Wayand, under Section 209 of Cr.PC. The learned Sessions Judge, having taken cognizance of the offence made over the case to the Additional District Sessions Court-II, Kalpatta, for trial and disposal. On 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 a perusal of the records, framed a written charge against the accused for an offence punishable under Section 55(a) 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 nine witnesses as PW1 to PW9, and marked Exts.P1 to P14. 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 CRL.A. No. 495 OF 2014 4 2025:KER:51061 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(a) of the Abkari Act, and he was convicted and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5 Lakh. In default of payment of the fine, the accused was ordered to undergo simple imprisonment for a further period of one year. 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 CRL.A. No. 495 OF 2014 5 2025:KER:51061 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 spirit 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 seizure Mahazar, 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 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 CRL.A. No. 495 OF 2014 6 2025:KER:51061 prove the charge levelled against the accused, the prosecution mainly relies on the evidence of the detecting officer and the documentary evidence adduced in this case. This case was detected by the Excise Circle Inspector, Kalpatta Range. When the detecting officer was examined as PW1, he had narrated the entire sequence of events relating to the detection of the contraband and its seizure procedures. The seizure Mahazar prepared contemporaneously with the detection of the contraband was marked as Ext. P3.
9. The independent witnesses cited by the prosecution to prove the alleged seizure were examined as PW3 and PW4. However, during the examination, both of them turned hostile to the prosecution. 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 CRL.A. No. 495 OF 2014 7 2025:KER:51061 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 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.P3 Mahazar reveals that neither the sample seal nor the specimen impression of the seal allegedly used by the detecting officer for sealing the CRL.A. No. 495 OF 2014 8 2025:KER:51061 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.P3 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.
12. Moreover, in a case of this nature, it is the bounden duty of the prosecution to show that the sample drawn from the spot remained in safe custody until it reached the hands of the chemical examiner for analysis. Only when such a secure and uninterrupted chain of custody is proved it can be held that the sample analyzed is the very same one drawn from the contraband allegedly seized from CRL.A. No. 495 OF 2014 9 2025:KER:51061 the accused. Keeping in mind the above while reverting to the case at hand, it can be seen that in Ext.P13 forwarding note, the name of the Excise Guard with whom the contraband was entrusted from the court for producing before the chemical examiner's laboratory does not find a place. When the space designated in the forwarding note for recording the name of the Excise Guard remains blank, it is incumbent on the part of the prosecution to examine the Thondi clerk as well as the Excise Guard as a witness to prove that there was a tamper-proof despatch of the sample from the court and an untampered transit of the same to the laborotoray. The same view has been taken by this Court in Kumaran P. v. State of Kerala and Another (2016 (5) KHC 632). However, in the case at hand, neither the Thondi clerk nor the Excise Guard with whom the sample was entrusted from the court was examined. The absence of such examination enures to the benefit of the accused. Therefore, in the facts and circumstances of the present case, I have no hesitation in holding that the prosecution CRL.A. No. 495 OF 2014 10 2025:KER:51061 failed to prove the link evidence pertaining to the safe custody of the sample until it reached the hands of the chemical examiner. The said lapse is fatal to the prosecution, and hence, it is liable to be held that the prosecution failed to prove the charge 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(a) 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 rkr