Kerala High Court

S.Santhosh vs State Of Kerala on 8 August, 2025

Crl. Appeal No. 843 of 2007         :1:



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                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                   THE HONOURABLE MR. JUSTICE JOHNSON JOHN

          WEDNESDAY, THE 30TH DAY OF JULY 2025 / 8TH SRAVANA, 1947

                              CRL.A NO. 843 OF 2007

        AGAINST THE JUDGMENT DATED 17.05.2007 IN SC NO.317 OF 2006 OF

ADDITIONAL SESSIONS COURT, FAST TRACK-III (ADHOC)- III, MANJERI


APPELLANT/ACCUSED:

              MANI, S/O. DASAN, KUTHANOOR, WANDOOR,, MALAPPURAM DISTRICT.


              BY ADV SRI.BABU S. NAIR


RESPONDENT/STATE:

              THE STATE OF KERALA, THE EXCISE INSPECTOR, KALIKAVU EXCISE
              RANGE- THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF,
              KERALA, ERNAKULAM, KOCHI-31.


       SRI. ALEX M. THOMBRA, SR. PUBLIC PROSECUTOR

       THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.07.2025, THE

       COURT ON 30.07.2025 DELIVERED THE FOLLOWING:
 Crl. Appeal No. 843 of 2007         :2:



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                             JOHNSON JOHN, J.
            ---------------------------------------------------------
                         Crl. Appeal No. 843 of 2007
             ---------------------------------------------------------
                      Dated this the 30th day of July, 2025

                               JUDGMENT

The appellant is challenging the conviction and sentence passed

against him under Section 55(g) of the Kerala Abkari Act ('the Act' for

short).

2. The prosecution case is that the accused was found carrying 18

litres of wash in a plastic pot on 20.07.2004, at 10.30 p.m. at a place

called Koorad in Wandoor by the Excise Preventive Officer of Excise

Circle Office, Nilambur.

3. The trial court framed charge against the accused for the

offence punishable under Section 55(g) of the Act. The accused pleaded

not guilty and the prosecution examined PWs 1 to 5 and marked Exhibits

P1 to P7 and MOs 1 and 2. From the side of the accused, DW1 was

examined.

4. After trial and hearing both sides, the trial court found the

accused guilty of the offence under Section 55(g) of the Act and

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convicted him thereunder and sentenced him to undergo rigorous

imprisonment for five years and to pay a fine of Rs.1,00,000/- and in

default of payment of fine, to undergo simple imprisonment for one

year.

5. Heard the learned counsel for the appellant and the learned

Public Prosecutor and perused the records.

6. The learned counsel for the appellant argued that the evidence

of PW4, Excise Inspector who registered Exhibit P4, crime and

occurrence report, in chief examination itself will clearly show that he

received the accused, documents and material objects in this case from

PW3, excise guard, only at 8 a.m., on 21.07.2004. But, it is pertinent to

note that as per Exhibit P4, the same is registered at 00.30 hours on

21.07.2004.

7. Even though the prosecution has a case that PW1, Excise

Preventive Officer of Nilambur Excise Circle Office who detected the

case, handed over the accused, documents and material objects to PW3,

excise guard of Kaliyar Excise Range at 00.30 hours on 21.7.2004, PW1

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has no case that he informed PW4, Excise Inspector who was in charge

of the Excise Range Office, Kaliyar, about the incident at the time when

he handed over the accused, documents and properties to PW3, excise

guard. PW3, excise guard, has no case that he received the accused,

documents and properties from PW1 as per the direction of PW4, Excise

Inspector.

8. Admittedly, PW3, excise guard, was in possession of the

documents and material objects till he handed over the same to PW4,

Excise Inspector, at 8 a.m. on 21.07.2004.

9. A perusal of Exhibit P2 mahazar shows that a sample seal is

affixed. But, there is nothing in the mahazar regarding the nature of the

sample seal or whose seal is affixed in the samples allegedly taken at

the time of occurrence. The evidence of PW1 shows that he took sample

of wash in two bottles of 750 ml. capacity. According to PW1, in one of

the bottles, 750ml. of wash is taken as sample and in the other bottle,

500 ml. of wash is taken as sample. It is not forthcoming as to why he

took only 500 ml. of wash in one sample bottle when he has taken 750

ml. as sample in the other bottle.

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10. The evidence of PW4 and Exhibit P5 property list shows that

the property list was prepared by PW4 only after he received the

properties from PW3, excise guard, at 8 a.m. on 21.07.2004. Even

though it is mentioned that the sample bottles were sealed and labelled,

there is nothing in Exhibit P5 to indicate the nature of the seal in the

sample bottles. Further, PW3, excise guard, has no case that he verified

the sample bottles or compared the seal in the sample bottle with any

specimen seal at the time when he received the same from PW1.

11. PW3 only deposed that the accused, documents and

properties which he received were subsequently handed over to the

Excise Inspector. The prosecution has not produced any document to

show that PW3, excise guard, was authorised to receive the accused,

documents and properties from PW1 on 21.7.2004 and therefore, there

is no assurance that the very same sample drawn at the spot of the

occurrence by PW1 was produced before PW4, Excise Inspector, at the

time of registering Exhibit P4, crime and occurrence report.

12. In Sasidharan v. State of Kerala [2007 (1)KLT 720 = 2007

KHC 3404], this Court held that the prosecution has a duty to prove

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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.

13. 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.

14. It is well settled that the specimen of the seal used is required

to be affixed in the contemporaneous mahazar, property list and in the

forwarding note, so as to enable the court to satisfy the genuineness of

the sample produced in the court.

15. In Prakasan v. State of Kerala [2016 (1) KLD 311], this

Court has held as follows:

"Further in the absence of specimen seal impression of the seal used for sealing the article having been produced in Court and in the absence of

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producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in Court in the same condition in which it was seized and it reached the chemical examiner's lab in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused".

16. It is well settled that mere production of a laboratory report

that the sample tested was the contraband substance cannot be

conclusive by itself. The sample seized and that tested have to be co-

related, as held by the Honourable Supreme Court in Vijay Pandey v.

State of Uttar Pradesh [AIR 2019 SC 3569)].

17. In this case, the trial court has not properly considered the

aforesaid vital aspects while appreciating the prosecution evidence and

therefore, the conviction against the accused 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

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Section 55(g) of the Act is set aside. The appellant/accused is found not