Kerala High Court
Eldhose vs State Of Kerala on 11 July, 2025
CRL.A. No. 1073 OF 2014 1 2025:KER:51064
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. 1073 OF 2014
AGAINST THE JUDGMENT DATED 09.10.2014 IN SC NO.419
OF 2013 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -
VII, ERNAKULAM
APPELLANTS/ACCUSED 1 AND 2:
1 ELDHOSE,
AGED 49 YEARS,
S/O.VARGHESE, KOTTAPPURAM HOUSE,
CHOORAMUDIKARA, KOMBANADU
2 EBY ELDHO,
AGED 21 YEARS,
S/O.ELDHO, KOTTAPPURAM HOUSE,
CHOORAMUDIKARA, KOMBANADU.
BY ADVS.
SRI.V.JOHN SEBASTIAN RALPH
SHRI.BIMAL PRASAD
SRI.K.J.JOSEPH (ERNAKULAM)
SMT.PREETHY KARUNAKARAN
SMT.SANJANA R.NAIR
SRI.JOHN THOMAS V
CRL.A. No. 1073 OF 2014 2 2025:KER:51064
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA AT ERNAKULAM, COCHIN 31
BY ADV.SRI.ALEX M.THOMBRA -PP
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. 1073 OF 2014 3 2025:KER:51064
JUDGMENT
The accused Nos.1 and 2 in S.C.No.419/2013, on the file of Additional Sessions Court-VII, Ernakulam, has preferred this appeal challenging the judgment of conviction and order of sentence passed against them for the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act. of the Abkari Act.
2. The prosecution allegation in brief is that, on 30.09.2011 at 3.30 p.m., the accused Nos.1 and 2 were found in possession of 17 litres of arrack in their residential house named Kottapuram House bearing No.XIII/218(Old No.II/299) of Vengoor Panchayat, 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 CRL.A. No. 1073 OF 2014 4 2025:KER:51064 report was laid before the Judicial First Class Magistrate Court-I, Perumbavoor. 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, Ernakulam, 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-VII, Ernakulam 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, both of them pleaded not guilty and claimed to be tried.
4. The prosecution, in its bid to prove the charge CRL.A. No. 1073 OF 2014 5 2025:KER:51064 levelled against the accused, has altogether examined six witnesses as PW1 to PW6, and marked Exts.P1 to P14. MO1 and MO2 were exhibited and identified. After the completion of prosecution evidence, both the accused were questioned under Section 313 Cr.P.C., during which they denied all the incriminating materials brought out against them 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., they were called upon to enter on their defence and adduce any evidence they may have in support thereof. But no evidence, whatsoever, was adduced from the side of the accused.
5. After trial, both the accused were found guilty of the offence punishable under section 8(2) r/w 8(1) of the Abkari Act, and they were convicted and sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.1 Lakh each. In default of payment of the fine, the CRL.A. No. 1073 OF 2014 6 2025:KER:51064 accused were 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 appellants and the learned Public Prosecutor.
7. The learned counsel for the appellants submitted that the accused are innocent of the allegations levelled against them and they were falsely implicated in this case. According to the counsel, the accused had no connection whatsoever with the liquor allegedly seized in this case, and they were implicated on the basis of surmises and conjectures, and due to political reasons. According to the counsel in the case at hand, there is absolutely no convincing evidence to show that the sample that was analysed in the laboratory is the very same one that was allegedly drawn from the spot of detection. It is pointed out that in the CRL.A. No. 1073 OF 2014 7 2025:KER:51064 Mahazar allegedly prepared contemporaneous with the detection of the contraband, the sample seal or the specimen impression of the seal used for sealing the sample does not find a place. It was further submitted that the copy of the forwarding note, which is a crucial document in an Abkari case, was not marked in evidence in this case, and the same is fatal to the prosecution. In short, the crux of the argument of the learned counsel for the appellants is that there is a patent flow 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 the hands of the chemical examiner for analysis is one and same. Per contra, the learned Public Prosecutor would contend that all the procedures regarding seizure and sampling were scrupulously complied with in this case so as not to leave any room for manipulations and tampering. According to the learned Public prosecutor, the evidence of CRL.A. No. 1073 OF 2014 8 2025:KER:51064 the detecting officer as well as the other official witnesses, and the documentary evidence adduced in this case clearly points towards the guilt of the accused, and hence no interference is warranted.
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 Sub Inspector of Police, Kuruppampady Police Station on 30.09.2011. When the detecting officer was examined as PW6, 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. P5.
9. The independent witnesses cited by the prosecution to prove the alleged seizure were examined as CRL.A. No. 1073 OF 2014 9 2025:KER:51064 PW3 and PW4. However, during the examination, both of them turned hostile to the prosecution by deposing that they did not witness the detection of the contraband 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 detecting officer as well as that of the other official witnesses were convincing and reliable particularly when there is nothing to indicate that the detecting officer or other official witnesses bore any grudge or animosity towards the accused that would motivate them to falsely implicated the accused in a false case. CRL.A. No. 1073 OF 2014 10 2025:KER:51064 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 manipulation and tampering in the future. Nevertheless, in the case at hand, a bare perusal of Ext.P5 Mahazar reveals that neither the sample seal nor the specimen impression of the seal allegedly affixed in the sample does not finds a place in it. The absence of sample seal or the specimen impression of the seal in the Mahazar is certainly a circumstance to doubt the identity of the sample drawn and the identity of the sample got analyzed in the laboratory.
11. Likewise, in Ext.P5 Mahazar, the details of the seal allegedly used in this case are not mentioned. Moreover, CRL.A. No. 1073 OF 2014 11 2025:KER:51064 nothing is mentioned about the procedures of sampling and sealing, which were adopted. During the examination before the court, the detecting officer did not depose about the nature of the seal used for sealing the sample, as well as the residue of the contraband allegedly seized in this case.
12. At this juncture, it is pertinent to note that the copy of the forwarding note, which is a crucial document as far as an Abkari case is considered that is not marked as evidence in this case. The non-production of the forwarding note is undoubtedly fatal to the prosecution. Only when the same is produced, the court could verify whether it bears the specimen impression of the seal or the sample seal, so as to help the chemical examiner to compare it with the seal found on the sample. In the absence of a copy of the forwarding note, it is impossible to conclude that the sample collected from the contraband allegedly seized in this case is the very same one ultimately examined by the chemical examiner. CRL.A. No. 1073 OF 2014 12 2025:KER:51064 Therefore, I have no hesitation in holding that the prosecution failed to prove the charge levelled 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 appellants/accused for the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act is set aside and they are acquitted. Fine amount, if any, has been deposited by the appellants/accused, the same shall be refunded to them in accordance with law.
Sd/-
JOBIN SEBASTIAN
JUDGE
rkr