Kerala High Court
O.K. Kunhikannan vs The State Of Kerala on 21 August, 2025
Crl.R.P.No. 1101 OF 2018 1 2025:KER:63661
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
THURSDAY, THE 21ST DAY OF AUGUST 2025 / 30TH SRAVANA, 1947
CRL.REV.PET NO. 1101 OF 2018
AGAINST THE JUDGMENT IN Crl.A NO.227 OF 2016 OF
SESSIONS COURT, KASARAGOD ARISING OUT OF THE JUDGMENT IN SC
NO.873 OF 2012 OF ASSISTANT SESSIONS COURT, HOSDRUG
REVISION PETITIONER/APPELLANT/ACCUSED:
O.K. KUNHIKANNAN
AGED 60 YEARS
S/O KALLALAN, OKLAVE VEETTIL, OKLAVE, KALLAR
VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.
RESPONDENT/RESPONDENT/STATE:
THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SMT.SYLAJA S L - PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
HEARING ON 14.8.2025, THE COURT ON 21.08.2025 DELIVERED THE
FOLLOWING:
Crl.R.P.No. 1101 OF 2018 2 2025:KER:63661
M.B.SNEHALATHA, J.
-------------------------------------------
Crl.R.P.No. 1101 OF 2018
-------------------------------------------
Dated this the 21st August, 2025
ORDER
Challenge in this revision petition filed by the accused is to
the judgment of conviction and order of sentence against him in
Crl.A No.227/2016 of Sessions Court, Kasragod for the offence
punishable under Section 8(1) r/w Section 8(2) of the Abkari Act 1
of 1077.
2. Prosecution case is that on 18.1.2010 at around 1.15
pm near community Hall Oclava Colony, accused was found in
possession of 5 liters of arrack, which he was carrying in a plastic
can and thereby committed the offence punishable under Section
8(1) r/w Section 8(2) of the Abkari Act.
3. The offence was detected by the Excise Inspector,
Hosdurg Excise Range and his team. After investigation, final
report was filed against the accused for the offence punishable
under Section 8(1) r/w 8(2) of the Abkari Act.
4. Accused pleaded not guilty to the charge and faced trial
before the Assistant Sessions Court, Hosdurg to which the case
Crl.R.P.No. 1101 OF 2018 3 2025:KER:63661
was made over for trial and disposal. To substantiate the
prosecution case, prosecution examined PWs 1 to 5 and marked
Exts.P1 to P13(a). No defence evidence was adduced by the
accused.
5. After trial, the learned Assistant Sessions Judge,
Hosdurg, found the accused guilty under Sections 8(1) r/w 8(2) of
Abkari Act and he was convicted and sentenced to undergo
rigorous imprisonment for a period of two years and to pay a fine
of ₹1 lakh. In default of payment of fine to undergo simple
imprisonment for four months. In appeal filed as Crl.A
No.227/2016 by the accused, the Court of Session, Kasaragod
confirmed the conviction but modified the sentence by reducing the
substantive sentence of rigorous imprisonment for two years to
one year. The sentence of fine of ₹1 lakh remains unaltered in
appeal.
6. Challenging the conviction and sentence, accused has
preferred this revision petition contending that the trial court and
the appellate court went wrong in appreciating the evidence.
Further, it was contended that there was undue delay in conducting
the investigation and filing the final report, which caused prejudice
to the accused. It was also contended that there was an
Crl.R.P.No. 1101 OF 2018 4 2025:KER:63661
unexplained delay in producing the sample before the chemical
analysis laboratory and therefore there is no link evidence to
connect the accused with the contraband.
7. Per contra, the learned Public Prosecutor submitted that
the impugned judgment suffers from infirmity; that the prosecution
has succeeded in establishing the charge against the accused and
there are no reasons to interfere with the conviction and sentence
against the accused.
8. In view of the rival submissions, the point for
consideration in this revision petition is whether the conviction and
sentence against the revision petitioner for the offence under
Section 8(1) r/w 8(2) of the Abkari Act warrant any interference by
this Court.
9. PW3, who was the Excise Inspector of Hosdurg Excise
Range is the detecting officer. According to him on 18.1.2010 while
he along with his team were on patrolling duty at Oclavu Colony
Road, accused was found coming through the mud road near the
Community Hall by holding a can in his hand. PW3 along with his
team intercepted the accused and on inspection of the can carried
by the accused, it was found that the can contains 5 liters of illicit
arrack. PW3 arrested the accused; drawn a sample of 300 ml from
Crl.R.P.No. 1101 OF 2018 5 2025:KER:63661
the liquid seen in the can; that the bottle in which sample was
taken was duly sealed and labelled. Exts.P5 and P6 are the arrest
memo and arrest intimation. According to PW3, Ext.P1 is the
seizure mahazar prepared by him at the time when seizure was
effected. Ext.P8 is the crime and occurrence report. Ext.P10 is the
copy of the forwarding note. According to him, the residue of the
contraband, after taking sample, was forwarded to the Deputy
Excise Commissioner and Exts.P11 to P13(a) are the inventory
certificate and photographs with CD of the contraband article
produced before the Deputy Excise Commissioner.
10. PW1, who was the Preventive Officer of Hosdurg Excise
Office testified that at the time when PW3 effected seizure of the
contraband from the accused, he was also present in the excise
team led by PW3 and he is a witness to Ext.P1 seizure mahazar
prepared by PW3.
11. PW4 and PW5 who were cited as eyewitnesses by the
prosecution, turned hostile to the prosecution and testified that
they did not witness the alleged seizure of arrack.
12. PW2 was the Assistant Excise Commissioner who
conducted investigation and laid final report before the court.
Ext.P2 is the scene mahazar prepared by him.
Crl.R.P.No. 1101 OF 2018 6 2025:KER:63661
13. The learned counsel for the revision petitioner/accused
contended that Ext.P4 chemical analysis report would reveal that
the sample sent to the chemical examiner's laboratory reached
there only on 28.1.2010 though it was sent as per letter dated
18.1.2010 and there is no explanation as to what happened to the
sample in between 18.1.2010 and 28.1.2010. It was also
contented that Ext.P9 property list does not contain the specimen
seal allegedly affixed in the sample and the seizure mahazar.
14. A perusal of Ext.P4 chemical analysis report would show
that though the sample was sent by the court for chemical analysis
by letter dated 18.1.2010 it reached at the Chemical Examiner's
laboratory only on 28.1.2010. Prosecution has not furnished any
explanation for the said delay in producing the said sample before
the laboratory. The Excise Guard through whom the sample was
sent to the laboratory was not examined by the prosecution. The
property clerk of the court was also not examined. There is no
evidence as to who was in custody of the sample from 18.1.2010
to 28.1.2010. Therefore, the possibility of tampering with the
sample cannot be ruled out as rightly contended by the learned
counsel for the revision petitioner. There is no assurance that the
very same sample which was allegedly drawn and produced before
Crl.R.P.No. 1101 OF 2018 7 2025:KER:63661
the court reached the Chemical Analysis Laboratory in a tamper-
proof condition. In Sasidharan v. State of Kerala (2007(1) KLT
720) this Court has emphasised the legal obligation cast on the
prosecution to prove that the sample allegedly drawn from the
contraband seized from the accused eventually reached the hands
of the chemical examiner in a tamper-proof condition. When the
sample changed several hands before reaching the chemical
examiner, the prosecution has a duty to prove that the sample has
not been tampered with and the prosecution has to necessarily
examine the various officials who handled the sample. In Vijay
Panday v. State of UP (AIR 2019 SC 3569), the Apex Court held
that mere production of a laboratory report that the sample tested
was the contraband substance cannot be conclusive proof by itself
and that the sample seized and one tested are to be co-related. In
the case in hand, prosecution failed to establish that the sample
allegedly drawn from the contraband seized from the accused
eventually reached at the hands of chemical examiner in a tamper-
proof condition.
15. There is an unexplained delay of two years in filing the
final report before the court. Section 50 of the Abkari Act provides
that every investigation into the offence under the Abkari Act shall
Crl.R.P.No. 1101 OF 2018 8 2025:KER:63661
be completed without necessary delay. Prosecution has not
furnished any explanation for the delay of more than two years in
completing the investigation. Unexplained delay in completing the
investigation and filing the final report also casts doubt in the
prosecution case.
16. In Gangadharan v. State of Kerala (2024(1) KHC 111)
this Court held that the delay of two years in completing the
investigation and filing the charge sheet is against the mandate
under Section 50 of the Abkari Act. In the light of the lacuna in
the prosecution case as mentioned above, I find that the accused
is entitled to get the benefit of reasonable doubt and therefore
accused is found not guilty and acquitted under Sections 8(1) r/w
Section 8(2) of the Abkari Act.
17. In the result, the revision petition stands allowed;
accused is found not guilty of the offence under Sections 8(1) r/w
Section 8(2) of the Abkari Act 1 of 1077 and he is acquitted.
His bail bond stands discharged and he is set at liberty.
Sd/-
M.B.SNEHALATHA
ab JUDGE
