Kerala High Court
Baby C.A vs State Of Kerala on 15 July, 2025
2025:KER:51971
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. 771 OF 2014
CRIME NO.71/2013 OF SULTHANBATHERY EXCISE RANGE OFFICE,
WAYANAD
AGAINST THE ORDER/JUDGMENT DATED 19.11.2013 IN CP
NO.31 OF 2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
SULTHANBATHERY ARISING OUT OF THE ORDER/JUDGMENT DATED
11.07.2014 IN SC NO.201 OF 2013 OF ADDITIONAL DISTRICT COURT
& SESSIONS COURT- II, KALPETTA
APPELLANT/COUNTER PETITIONER:
BABY C.A
AGED 47 YEARS
S/O.ANTONY, CHUNDATHU HOUSE, VADAKKANAD,
MNALADI, KIDANGANADU VILLAGE, SULTHANBATHERY.
BY ADVS.
SRI.S.M.PRASANTH
DR.K.BALAKRISHNAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.
SRI.ALEX M.THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING
14.07.2025, THE COURT ON 14.07.2025 THE FOLLOWING:
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JUDGMENT
The sole accused in S.C.No.201/2013, on the file of the Additional Sessions Court-II, Kalpetta 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 13.04.2013, at about 7.25 p.m., in the courtyard of the house bearing No.II/98 of Noolpuzha Grama Panchayatat Vadakkanad, the accused was found in possession of Indian-made foreign liquor meant for sale in Karnataka State only and engaged in the sale of the same in contravention of the provisions of the Abkari Act and thereby committed an offence punishable under Section Sections 55(a), 55(i), and 58 of the Abkari Act.
3. Upon conclusion of the investigation, the final report was laid before the Judicial First Class Magistrate Court-I, Sultanbathery. 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. Crl.A.No. 771 of 2014
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4. The learned Sessions Judge, having taken cognizance of the offence, made over the case to the Additional Sessions Court-II, Kalpetta, for trial and disposal. On the appearance of the accused, 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 the offence punishable under Section 55(a) and 55(i) of the Abkari Act. When the charge was read over and explained to the accused, he pleaded not guilty and claimed to be tried. 5. During the trial, from the side of the prosecution, altogether eight witnesses were examined as PW1 to PW8 and marked Exts. P1 to P15(a). MO1 series 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. 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., he was called upon to enter on his defence and adduce any evidence that he may have in support thereof. However, no evidence was adduced from the side of the accused. 6. After trial, the accused was found guilty of the offence Crl.A.No. 771 of 2014 :4: 2025:KER:51971 punishable under section 55(a) of the Abkari Act, and he was convicted and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/-. In default of payment of the fine, the accused was ordered to undergo simple imprisonment for six months. Assailing the said judgment of conviction and the order of sentence passed, the present appeal has been preferred.
7. I heard Sri.S.M.Prasanth, the learned counsel for the appellant, and Sri.Alex M.Thombra, the learned Senior Public Prosecutor.
8. The learned counsel for the appellant would submit that the trial court failed to appreciate the facts and evidence brought on record in this case in its proper perspective and arrived at a conclusion of guilt hastily and erroneously. According to the counsel, the accused was implicated in this case based on some surmisers and conjectures. It was contended that the procedures relating to seizure and sampling were not done in a foolproof manner, leaving room for tampering. The learned counsel further submitted that the hostility shown by the independent witnesses to the prosecution case is fatal, especially when the seizure and sampling procedures were not in a tamper-proof condition. Crl.A.No. 771 of 2014
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According to the counsel, it is unsafe to act upon the solitary evidence of the detecting officer to sustain a conviction in this case. The counsel urged that the prosecution failed to establish sufficient link evidence to show that the sample allegedly drawn from the spot of detection is the very same sample that reached the chemical examiner's laboratory for analysis. It is further pointed out that the delay in producing the sample before the court will certainly give room for tampering, and hence, the said delay is fatal to the prosecution.
9. In response, the learned Public Prosecutor would contend that, to eliminate any possibility of future allegations of manipulation or tampering, all the procedural formalities were scrupulously followed in this case. According to the learned Public Prosecutor, the sample seal finds a place in crucial documents like seizure mahazar, property list, forwarding note, etc., and therefore, there is no reason to doubt that the sample drawn at the time of detection is the very same sample that reached the hands of the chemical examiner for analysis.
10. A perusal of the records reveals that to bring home the guilt of the accused, the prosecution mainly relies on the evidence of the detecting officer and the documentary evidence produced Crl.A.No. 771 of 2014 :6: 2025:KER:51971 in this case. This case was detected by the Preventive Officer, District Special Squad, Wayanad, on 13.04.2013. When the detecting officer was examined as PW1, he narrated the entire sequence of events leading to the detection of the contraband and its seizure procedures.
11. The independent witnesses examined by the prosecution to prove the alleged seizure are PW3 and PW4. However, during the examination, both of them turned hostile to the prosecution by deposing that they did not witness the incident in this case. While considering the question of whether the hostility shown by the independent witnesses had any serious bearing 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. 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 particularly when 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.
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12. 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 tampering. In the case at hand, the seizure mahazar prepared by PW1 is marked as Ext.P4. A perusal of Ext.P4 reveals that the specimen impression of the sample is affixed in the seizure mahazar. Ext.P9 property list, in terms of which the sample was produced before the court, also bears the specimen impression of the seal used in this case.
13. The forwarding note, which is one of the crucial documents as far as an Abkari case is concerned, also bears the sample seal of the detecting officer. Therefore, it could be seen that the chemical examiner got sufficient opportunity to compare the seal found on the same with the seal found on the sample. Notably, in the chemical analysis report, which is marked as Ext.P12, it is specifically mentioned that the seals on the bottles were intact and found to tally with the sample seal provided in the forwarding note. Therefore, I find no reason to interfere with the Crl.A.No. 771 of 2014 :8: 2025:KER:51971 impugned judgment on the ground of any improper compliance of formalities regarding seizure and sampling.
14. However, 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 the 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 analysed is the very same one drawn from the contraband allegedly seized from the accused. Keeping in mind the above while reverting to the case at hand, it can be seen that in Ext.P10 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 witnesess to prove that there was a tamper-proof dispatch of the sample from the court and an untampered transit of the same to the laboratory. 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 Crl.A.No. 771 of 2014 :9: 2025:KER:51971 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 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.
15. However, as revealed from the property list, which is marked as Ext.P9, the sample allegedly drawn from the liquor seized from the possession of the accused was produced before the court only on 18.04.2013. Virtually, there is a delay of 5 days in producing the sample before the court. However, no explanation whatsoever has been offered from the side of prosecution for the said delay. The unexplained delay in producing the sample, as well as the residue of the liquor before the court, is certainly fatal to the prosecution. Particularly when there is no evidence to show that the sample was in safe custody till the same was produced before the court. Delay in producing the sample before the court will leave room for allegations of Crl.A.No. 771 of 2014 :10: 2025:KER:51971 manipulation and tampering. Therefore, I have no hesitation in holding that the accused is entitled to get an order of acquittal on the said ground as well.
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 the 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