Kerala High Court
Soman vs State Of Kerala on 22 May, 2025
2025:KER:35361
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 22ND DAY OF MAY 2025 / 1ST JYAISHTA, 1947
CRL.A NO. 846 OF 2014
CRIME NO.238/2008 OF KOODAL POLICE STATION, PATHANAMTHITTA
AGAINST THE JUDGMENT DATED 11.08.2014 IN S.C. NO.535 OF 2009 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, PATHANAMTHITTA
APPELLANT/ACCUSED:
SOMAN
AGED 60 YEARS
S/O.VASUKUTTY,RESIDING AT PRADEEP BHAVAN,SUNNY MUKKU,
POTHUPARA, KOODAL MURI & VILLAGE TALUK,
PATHANAMTHITTA DISTRICT
BY ADV SRI.V.SETHUNATH
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM PIN 682 031
PP - ADV SHEEBA THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:35361
Crl.A. No. 846 of 2014
2
JUDGMENT
Dated this the 22nd day of May, 2025 The sole accused in S.C. No.535/2009 on the files of the Additional District and Sessions Court-II, Pathanamthitta, has come up in appeal, challenging the conviction and sentence imposed by the Additional District and Sessions Judge, as per the judgment dated 11.08.2014. The State of Kerala, represented by the Public Prosecutor is arrayed as the sole respondent herein.
2. Heard the learned counsel for the appellant as well as the learned Public Prosecutor, in detail. Perused the verdict under challenge and the records of the trial court.
3. In a nutshell, the prosecution case is that, at about 05.15 p.m. on 07.09.2008, the accused was found in possession of 1 Litre of illicit arrack in a rubber estate situated at Pothupara - Sannymukku in Koodal Village, against the prohibitions contained in the Kerala Abkari Act and thereby committed the offence punishable under Section 8(1) read with 8(2) of the Kerala Abkari Act. The case was charge sheeted by the Sub Inspector of Police, Koodal.
2025:KER:35361 Crl.A. No. 846 of 2014 3
4. Initially, the case was committed to the Sessions Court and later made over to the Additional District and Sessions Court-II, Pathanamthitta for hearing and disposal. After, framing charge for the offence under Sections 8(1) read with 8(2) of the Kerala Abkari Act, the trial court recorded evidence and tried the matter. PWs 1 to 3 were examined and Exts.P1 to P7 and MOs 1 and 2 were marked on the side of the prosecution. CW1 was also examined as court witness. Even though, the accused was given opportunity to adduce defence evidence after questioning him under Section 313(1) of Cr.P.C, he did not opt to adduce any defence evidence.
5. On appreciation of evidence, the trial court found that the appellant/accused is guilty for the offence punishable under Section 8(1) read with 8(2) of the Kerala Abkari Act and accordingly he was convicted and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused was sentenced to undergo simple imprisonment for a period of 15 days more. Set off was 2025:KER:35361 Crl.A. No. 846 of 2014 4 allowed to the accused, as per law.
6. While assailing the conviction and sentence imposed by the trial court, the learned counsel for the appellant/accused would submit that there is patent procedural irregularity in this matter, which would go to the root of the case, so that the accused would deserve acquittal. It is pointed out by the learned counsel for the appellant/accused that, as per the decision of this Court in Vijayan @ Puthoor Vijayan v. State of Kerala reported in [2021 (5) KHC 347 : 2021 (2) KLD 483 : 2021 KHC OnLine 595 : 2021 (5) KLT 321 : 2021 (4) KLJ 224 :
2021 KER 34088], this Court analyzed the steps to be followed by the Officer collecting the sample, Thondy Clerk, who is authorized to receive the thondy and also the measures to be ensured by the Chemical Examiner to ensure that sample collected from the contraband seized safely reached the hands of the Chemical Examiner for examination. According to the learned counsel for the appellant/accused, in the instant case, Condition No.ii to be followed by the officer collecting the sample as held in Vijayan @ Puthoor Vijayan's case (supra) is not followed 2025:KER:35361 Crl.A. No. 846 of 2014 5 or complied. Since there is reluctance on the part of the officer in describing the nature of the specimen seal in the mahazar and affixing the specimen seal in the mahazar, there is nothing to ensure that the sample sent for chemical examination is the one recovered from the appellant/accused. Therefore, the appellant/accused would get the benefit of doubt and thereby the verdict of the trial court is liable to be reversed.
7. Although, the learned Public Prosecutor opposed interference in the verdict of the trial court, she is not able to justify the laxity pointed out by the learned counsel for the appellant/accused.
8. In view of the rival submissions, the questions arise for consideration are:
1. Whether the trial court is justified in finding that the appellant/accused committed the offence punishable under Section 8(1) read with 8(2) of the Abkari Act?
2. Whether the trial court verdict requires interference?
3. Reliefs to be ordered?
9. In Vijayan @ Puthoor Vijayan's case (supra), 2025:KER:35361 Crl.A. No. 846 of 2014 6 this Court enumerated the steps to be followed by the officer collecting the sample, steps to be followed by Thondy Clerk, who is authorized to receive the thondy and the measures to be ensured by the Chemical Examiner. The same read as under:
"Steps to be followed by the officer collecting the sample:
(i) Collection of sample from the alleged contraband by the Officer concerned shall be transparent eschewing possibility of tampering the sample in any manner;
(ii) While collecting sample, the officer shall describe the nature of the specimen seal in the mahazar and the specimen seal shall be affixed on the mahazar, on the sample bottle, bottle containing the remaining part of contraband and the forwarding note;
(iii) The sample so collected shall be produced before the jurisdictional Magistrate without any delay and the delay if any, shall be properly explained;
(iv) Specimen seal affixed on the sample should be produced before the court along with the contraband for comparison;
(v) The said officer shall depose about compliance of the above before the court while 2025:KER:35361 Crl.A. No. 846 of 2014 7 giving evidence.
Steps to be followed by the Thondy Clerk who is authorised to receive the thondy:
(i) The Thondy Clerk shall verify the specimen seal produced before the court and to compare the same with a seal affixed in the mahazar, collected sample and in the forwarding note to ensure that the seal of the sample is intact and there is no scope for tampering the same in between its collection and production before the court;
(ii) While forwarding the sample to the laboratory, the Thondy Clerk shall ensure that specimen sample seal is affixed on the forwarding note;
(iii) The forwarding letter shall contain the name of the official who is entrusted to handover the sample to the Chemical Examiner;
(iv) Specimen seal also to be provided to the Chemical Examiner for verification and to ensure that the specimen seal, so provided, is tallying with the seal affixed on the sample, to rule out the possibility of tampering while on transit of the sample;
(v) Thondy Clerk must be examined to prove compliance of the above, also to prove that he has been in custody of the sample from the date of receipt of sample till the date of 2025:KER:35361 Crl.A. No. 846 of 2014 8 forwarding and also to prove compliance of item No.(i) to (iv) steps stated hereinabove.
Measures to be ensured by the Chemical Examiner:
(i) Chemical Examiner shall ensure production of specimen seal to verify as to whether the specimen seal provided in the forwarding note and the sample forwarded are tallying to rule out tampering of a sample during transit;
(ii) In the chemical analysis report the said fact shall be stated so as to act upon the same without examining the Chemical Examiner as provided under Section 293 Cr.P.C."
10. Apart from that, it has to be observed that, in a case of this nature the prosecution could succeed only if it is proved that the contraband liquor, which was allegedly seized from the accused, ultimately reached the hands of the Chemical Examiner without possibility of tampering. Decisions reported in [1980 KHC 873], State of Rajasthan v. Daulat Ram; [1993(2) KLT 550 (SC)], Valsala v. State of Kerala; [2007 KHC 3404], Sasidharan v. State of Kerala are given emphasis.
11. On perusal of Ext.P1 recovery mahazar, even 2025:KER:35361 Crl.A. No. 846 of 2014 9 though it has been stated that the specimen seal of the detecting officer was affixed on the samples collected, there is no narration in the mahazar specifying the description of the nature of the specimen seal affixed in the sample and also there is no sample seal affixed in the mahazar. Thus, the contention raised by the learned counsel for the appellant/accused that, in the instant case, it could not be ensured that the sample collected reached at the hands of the Chemical Examiner, without being manipulated, is a point to be adjudged in favour of the appellant/accused to give the benefit of doubt. If so, it could not be held that the prosecution succeeded in proving that the accused possessed 1 Litre of illicit arrack, against the prohibitions contained in Kerala Abkari Act and thereby committed the offence punishable under Section 8(1) read with 8(2) of the Kerala Abkari Act. Therefore, the laxity pointed out and found above would go to the root of the matter.
12. On evaluation of the evidence available, the mandates necessary to ensure tamper proof collection of sample of the alleged contraband as held in Vijayan @ Puthoor Vijayan's case (supra), failed to be established by 2025:KER:35361 Crl.A. No. 846 of 2014 10 the prosecution and thus the prosecution failed to prove the case beyond reasonable doubts. Therefore, the accused/appellant herein is entitled to benefit of doubt and as such the conviction and sentence imposed by the trial court in the above circumstances cannot sustain. In view of the matter, the same are liable to be set aside.
13. In the result, the appeal is allowed. Conviction and sentence imposed by the trial court against the appellant/accused are set aside. Consequently, the appellant/accused is acquitted for the offence under Section 8(1) read with 8(2) of the Abkari Act. The bail bond executed by the appellant/accused shall stand cancelled. He is set at liberty forthwith.
Amount, if any, being part of the fine deposited by the appellant/accused by order of this Court shall be refunded to him, in accordance with the procedure established by law.
Sd/-
A. BADHARUDEEN SK JUDGE