Kerala High Court
Krishnankutty vs State Of Kerala on 15 July, 2025
2025:KER:51969
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 15TH DAY OF JULY 2025 / 24TH ASHADHA, 1947
CRL.A NO. 387 OF 2011
AGAINST THE ORDER/JUDGMENT DATED 31.01.2011 IN SC
NO.30 OF 2005 OF ADDITIONAL DISTRICT COURT (ADHOC)-IV,
THIRUVANANTHAPURAM ARISING OUT OF THE ORDER/JUDGMENT DATED
IN CP NO.26 OF 2004 OF JUDICIAL FIRST CLASS MAGISTRATE
COURT-I, NEYYATTINKARA
APPELLANT/ACCUSED:
KRISHNANKUTTY
KANIKKAMTHALA PUTHEN VEEDU, ONAMKODE,
VENPAKAL DESOM, ATHIYANOOR VILLAGE,
THIRUVANANTHAPURAM.
BY ADV SRI.G.P.SHINOD
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR
AT THE HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.
SRI.ALEX M. THOMBRA, SENIOR GOVERNMENT PLEADER
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING
14.07.2025, THE COURT ON 15.07.2025 DELIVERED THE FOLLOWING:
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2025:KER:51969
JUDGMENT
The sole accused in S.C.No.30/2005, on the file of the Additional District and Sessions Court-IV, Thiruvananthapuram, 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 04.07.2002 at 5.10 p.m., inside a plantain plantation situated on the south-western side of a pond at Onamkode in Athiyannoor Village, the accused was found in possession of 3 litres of arrack in a can having a capacity of 5 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-I, Neyyattinkara. 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, Thiruvananthapuram, under Section 209 of Cr.PC. The learned Sessions Judge, having taken cognizance of the offence, made over the case to the Additional Sessions CRL.A NO. 387 of 2011 :3: 2025:KER:51969 Court-IV, Thiruvananthapuram 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 P7. MO1 and MO2 were exhibited and identified. 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.
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 CRL.A NO. 387 of 2011 :4: 2025:KER:51969 was convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,00,000/-. 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 Senior 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 based on surmises and conjectures. The learned counsel vehemently urged that the Assistant Sub-Inspector of Police who detected the case, registered the crime and laid the occurrence report, and the final report after conducting the entire 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 the counsel in the case at hand, there is absolutely no material to show that the sample of the CRL.A NO. 387 of 2011 :5: 2025:KER:51969 arrack that was 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, the sample seal or specimen impression of the seal allegedly used is nowhere affixed. It was further submitted that the copy of the forwarding note, which is a crucial document in an Abkari case, is not marked in evidence in this case, and the same is fatal to the prosecution. Per contra, the learned Senior 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 Sub-Inspector of Police, Neyyattinkara, on 04.07.2002. When the detecting officer was examined as PW4, he narrated the entire sequence of events relating to the detection of the contraband and its seizure procedures. The seizure Mahazar prepared by PW4, contemporaneous with the detection of the contraband, was marked as Ext.P1.
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9. Evidently, it was the Assistant Sub-Inspector of Police, Neyyattinkara (PW4), who detected and registered the present case against the accused and laid the final report in this case after conducting the entire investigation. 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 on a final report submitted by an incompetent officer and the subsequent trial conducted are vitiated. Therefore, the accused is entitled to be acquitted on the said sole ground.
10. Moreover, in the case at hand, PW1, the independent witness examined by the prosecution to prove the detection of this case turned hostile to the prosecution by deposing that he 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 CRL.A NO. 387 of 2011 :7: 2025:KER:51969 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.P1 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 mahazar is certainly a circumstance to doubt the identity of the sample drawn and the identity of the sample that was analysed by the chemical examiner.
11. At this juncture, it is pertinent to note that the copy of the forwarding note is seen not marked in 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 can verify whether it contains the specimen impression of the seal or the sample seal that was meant to help the chemical examiner to compare with the seal found on the sample. In the absence of the copy of the forwarding note, it is impossible to enter into a conclusion that the sample collected from the spot is the very same sample that was ultimately examined in the laboratory.
12. Therefore, I have no hesitation in holding that the CRL.A NO. 387 of 2011 :8: 2025:KER:51969 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 cannot be safely concluded 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 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 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 ANS