Kerala High Court
M.P.Reji vs Excise Inspector on 11 August, 2025
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Crl. Appeal No. 629/2014 2025:KER:59819
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
MONDAY, THE 11TH DAY OF AUGUST 2025 / 20TH SRAVANA, 1947
CRL.A NO. 629 OF 2014
CRIME NO.9/2012 OF Vadakara Excise Range Office, Kozhikode
AGAINST THE ORDER/JUDGMENT DATED 31.03.2014 IN SC NO.177 OF 2013 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, KOZHIKODE / IV ADDITIONAL
MACT/RENT CONTROL APPELLATE AUTHORITY - VI, KOZHIKODE
APPELLANT/ACCUSED:-
M.P.REJI, S/O.RAMACHANDRAN, MUNGOTTUPOYIL HOUSE,
PULI BAZAR, CHELANNUR, KOZHIKODE.
BY ADV SHRI.JACOB ABRAHAM
RESPONDENT/COMPLAINANT:
EXCISE INSPECTOR, VATAKARA EXCISE RANGE, KOZHIKODE DISTRICT,
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM.
SMT. HAZNAMOL N.D., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.08.2025,
THE COURT ON 11.08.2025 DELIVERED THE FOLLOWING:
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Crl. Appeal No. 629/2014 2025:KER:59819
JOHNSON JOHN, J.
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Crl. Appeal No. 629 of 2014
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Dated this the 11th day of August, 2025
JUDGMENT
The appellant is the accused in S.C. No. 177 of 2013 on the file of
the Court of Session, Kozhikode and he is challenging the conviction and
sentence imposed on him for the offence under Section 55(a) of the
Kerala Abkari Act as per the judgment dated 31.3.2014.
2. The prosecution case is that on 08.02.2012, at 12.30 hours, the
accused was found transporting 8.20 litres of Indian Made Foreign Liquor
in a bus by name 'Sahara'. The offence was detected by the Excise
Preventive Officer and party attached to Excise Circle Office, Vatakara
while checking vehicles passing through the National Highway in front of
AVT Maruti showroom at Vatakara. After completing the investigation,
the final report was filed by the Excise Range Inspector of Vatakara
Excise Range.
3. The trial court, after framing charge, examined PWs 1 to 6 and
marked Exhibits P1 to P8 from the side of the prosecution and no
evidence adduced from the side of the defence.
Crl. Appeal No. 629/2014 2025:KER:59819
4. After trial and hearing both sides, the trial court found the
accused guilty of the offence under Section 55(a) of the Kerala Abkari
Act r/w Rule 9 of Foreign Liquor Rules and sentenced him to undergo
simple imprisonment for two years and to pay a fine of Rs.1,00,000/-
and in default of payment of fine, to undergo simple imprisonment for
six months.
5. Heard both sides and perused the records.
6. The learned counsel for the appellant argued that the
prosecution has not succeeded in establishing tamper-proof unbroken
chain of custody of the alleged contraband articles and sample and there
is no evidence as to who was in custody of the seized contraband and
sample in the Excise Circle Office, Vatakara and as to who produced the
same before the Excise Inspector of Vadakara Excise Range for the
purpose of registering the crime and occurrence report.
7. PWs 1 and 2 are the Preventive Officers attached to Excise
Circle Office, Vatakara and their evidence in chief examination only
shows that they produced the accused, records and properties in the
Excise Circle Office. In cross examination, PW1 stated that he produced
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the accused and properties before the Excise Circle Inspector, Jacob
Francis. But, the prosecution has not examined the said Jacob Francis as
a witness in this case.
8. PW4 deposed that on 08.02.2012, while working as Preventive
Officer in Excise Range Office, Vatakara, he was in charge of the Excise
Inspector and on that day, at about 4.30 p.m., when the accused,
records and properties were produced from the Excise Circle Office, he
registered Exhibit P3, crime and occurrence report. In spite of a specific
challenge in cross examination that the accused, records and properties
were not produced before him, PW4 has not disclosed the identity of the
officer who produced the accused, records and properties before him.
There is no documentary evidence to show who was entrusted by the
Excise Circle Inspector of Vatakara to produce the accused, documents
and properties before the Excise Range Office, Vatakara.
9. The learned counsel for the appellant pointed out that PW4 has
no case that he prepared Exhibit P5, list of sample, and while examining
PW6, Excise Inspector who conducted the investigation, the prosecution
marked Exhibit P5 list of sample said to be prepared by PW4.
Crl. Appeal No. 629/2014 2025:KER:59819
10. It is pertinent to note that PW4 has also not deposed that he
prepared the forwarding note. But, the prosecution marked Exhibit P6
copy of the forwarding note said to be prepared by PW4 through PW6,
Investigating Officer. Inventory of the seized articles prepared by the
Deputy Commissioner of Excise, Kozhikode, is marked as Exhibit P7
through PW6, Investigating Officer. But, it is not forthcoming as to who
produced the properties before the Deputy Commissioner of Excise for
preparing Exhibit P7, inventory.
11. It is the duty of the prosecution to prove that the sample
taken from the contraband liquor seized from the accused reached the
hands of the chemical examiner in a fool proof condition, as held by this
Court in Sasidharan v. State of Kerala, 2007 (1) KLT 720:2007 KHC
3404.
12. In Vijayan @ Puthoor Vijayan v. State of Kerala [2021 (5)
KHC 347] 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:
Crl. Appeal No. 629/2014 2025:KER:59819
"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 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 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
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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
S.293 Cr.PC."
13. As noticed earlier, in this case, there is no reliable evidence
as to who was in custody of the accused, documents and properties in
the Excise Circle Office and as to who produced the accused, documents
and properties before the Excise Range Office, Vatakara for registering
the crime and occurrence report.
14. PW3 was the conductor of the bus; but, he turned hostile to
the prosecution and deposed that he has not witnessed the search of the
bus by the Excise officials and he also deposed that the accused is not
known to him. Apart from the evidence of PWs 1 and 2, Preventive
Officers, there is no other independent evidence in support of the
prosecution regarding the occurrence.
15. According to PWs 1 and 2, they arrested the accused from
inside the bus. But, a perusal of Exhibit P2 mahazar would show that
after detecting the offence, the excise party alighted from the bus along
with the accused, witnesses and properties and after completing the
Crl. Appeal No. 629/2014 2025:KER:59819
procedures for the collection of sample, they arrested the accused by
preparing Exhibit P1, arrest memo.
16. The evidence of PW5, Village Officer, and Exhibit P4, scene
plan, shows the place of occurrence as a place in front of AVT Maruti
showroom. The evidence of PWs 1 and 2 shows that there were several
passengers in the bus and there were persons sitting by the side of the
accused at the time of occurrence. But, the Investigating Officer has not
questioned the said persons. It is well settled that when the provisions
of the statute are strict and the punishment is very high, more care and
caution is necessary and a strict interpretation of the provisions are
required.
17. On a careful evaluation of the available evidence, I find that
the prosecution has not succeeded in establishing the tamper proof chain
of custody of the contraband and sample seized and in the absence of
satisfactory evidence to prove that the sample taken from the
contraband liquor seized from the accused reached the hands of the
Chemical Examiner in a fool proof condition, the accused/appellant is
entitled to the benefit of reasonable doubt and as such, the conviction
and sentence imposed by the trial court is liable to be set aside.
Crl. Appeal No. 629/2014 2025:KER:59819
18. In the result, the conviction and sentence imposed by the trial
court against the accused/appellant is hereby set aside and he is
acquitted of the offence punishable under Section 55(a) of the Kerala
Abkari Act. The bail bond executed by the accused/appellant shall stand
cancelled and he is set at liberty forthwith.
This appeal is allowed as above.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
