Kerala High Court
Janaki vs The State Of Kerala on 4 August, 2025
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Crl. Appeal No. 411/2011
2025:KER:57820
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
MONDAY, THE 4TH DAY OF AUGUST 2025 / 13TH SRAVANA, 1947
CRL.A NO. 411 OF 2011
AGAINST THE JUDGMENT DATED 17.01.2011 IN SC NO.431 OF 2010 OF
ADDITIONAL DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC-II), KOZHIKODE
APPELLANT/ACCUSED:
JANAKI, WIFE OF PACHU, AGED 63 YEARS, ULLATTETHODUKAYIL (H),,
POOLAKKODE AMSOM DESOM, KOZHIKODE.
BY ADVS.
SHRI.P.V.ANOOP
SRI.PHIJO PRADEESH PHILIP
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.08.2025, THE
COURT ON 04.08.2025 DELIVERED THE FOLLOWING:
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Crl. Appeal No. 411/2011
2025:KER:57820
JOHNSON JOHN, J.
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Crl. Appeal No. 411 of 2011
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Dated this the 4th day of August, 2025
JUDGMENT
The appellant is challenging the conviction and sentence imposed
on her for the offence under Section 8(2) of the Kerala Abkari Act by the
trial court.
2. In the charge framed by the trial court, the allegation is that
the accused was found carrying about 3 litres of arrack in a 5 litre plastic
can at Erimala-Vellalassery pubic road near to the house of one
Sreedharan at 1 p.m. on 13.05.2008.
3. PW1, Excise Preventive Officer, and PW3, Excise Range
Inspector, are the official witnesses who deposed regarding the
occurrence in support of the prosecution case. PW4 is a witness to
Exhibit P1 mahazar; but, he turned hostile to the prosecution and
deposed that he has not seen the accused at the time of the alleged
occurrence.
4. The learned counsel for the accused/appellant pointed out that
PWs 1 and 3 have not stated the time of the alleged occurrence in their
evidence before the court and a perusal of Exhibit P1 mahazar would
show that the alleged occurrence was at 12 noon on 13.05.2008. Even
though the alleged occurrence was on 13.05.2008 and Exhibit P2 report
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of the chemical examiner is dated 21.11.2008, the final report is filed
only on 22.5.2010. It is also pertinent to note that in column No. 13 of
the final report, the Investigating Officer has not stated the time of
occurrence.
5. The evidence of PW2, Excise Inspector who filed the final report
after investigation, shows that he recorded the statement of CW1 only
on 13.02.2010. PW2 has not offered any satisfactory explanation for this
extraordinary delay in starting the investigation and sending the report
to the Magistrate. In Cheruvayi Mukundan and Another v. State of
Kerala [2016 Khc 717], this Court held thus:
14. No explanation has been offered for this extraordinary delay in
starting the investigation and sending the report to the Magistrate. This is
a circumstance which provides a legitimate basis for suspecting, the
entire report which afforded sufficient time to the prosecution to
introduce improvements and embellishments and to set up a distorted
version of the occurrence. This suspicion hardens into a definite
possibility when the case made in Court have no independent support. A
perusal of the investigation conducted by PW 3 shows that he has not
given any care to comply with the directions under the Statute. The delay
of two years in conducting investigation create a doubt in the credibility
of the prosecution case. Moreover, no independent corroboration to the
alleged seizure. The Apex Court recently held that when the provisions of
the Statute are strict and the punishment is very high, more care and
caution is necessary. Hence the provisions of the Abkari Act has to be
interpreted in the strict sense. ..."
6. The learned counsel for the appellant pointed out that the
specimen impression of the seal used is not affixed in Exhibit P5
property list and the specimen impression of the seal used is also not
seen separately produced so as to enable the court to satisfy the
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genuineness of the sample produced in court as per Exhibit P5 property
list.
7. Even though the alleged occurrence was on 13.05.2008, the
date below the initial of the jurisdictional Magistrate shows that the
property is produced only on 14.05.2008. Further, in Exhibit P5, there is
also a specific entry signed by the Junior Superintendent to the effect
that the properties as per Exhibit P5 are received and entered as item
No. 89/2008 on 14.05.2008. In that circumstance, the finding recorded
in the impugned judgment that the properties were seen received in
court on 13.05.2008 itself is not correct.
8. In Sasidharan v. State of Kerala [2007 (1)KLT 720 = 2007
KHC 3404], this Court held that the prosecution has a duty to prove
that, it was the sample taken from the contraband liquor seized from the
accused, reached the hands of the chemical examiner, in a foolproof
condition.
9. In Moothedath Sivadasan v. State of Kerala [2021 (1) KLT
744=2021 KHC 3232], this Court held that when the specimen
impression of the seal affixed on the seizure mahazar was not produced
before the court, it is difficult to hold that, the sample which reached the
chemical examiner's lab was the sample taken from the contraband
allegedly seized from the possession of the accused.
10. It is well settled that the specimen of the seal used is required
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to be affixed in the property list so as to enable the court to satisfy the
genuineness of the sample produced in the court and that mere
production of a laboratory report that the sample tested was the
contraband substance cannot be conclusive by itself.
11. In this case, the trial court has not properly considered the
aforesaid vital aspects while appreciating the prosecution evidence. In
such circumstances, the conviction entered against the
accused/appellant cannot be sustained.
In the result, the appeal is allowed. The order of conviction and
sentence passed against the appellant/accused by the trial court under
Section 8(1) r/w Section 8(2) of the Kerala Abkari Act is set aside. The
appellant/accused is found not guilty of the aforesaid offence and she is
acquitted. The bail bond executed by her is cancelled and she is set at
liberty. Fine amount, if any, remitted by her shall be refunded to her.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
