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Kerala High Court
Suo Motu Revision Case Registered As Per ... vs Nallamma on 11 December, 2025
1
Crl. Appeal No. 951 of 2011 & batch
2025:KER:95419
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 11TH DAY OF DECEMBER 2025 / 20TH AGRAHAYANA, 1947
CRL.A NO. 951 OF 2011
JUDGMENT DATED 22.03.2011 IN SC NO.419 OF 2010 OF ADDITIONAL
SESSIONS COURT (ADHOC)-I, MANJERI DIVISION
APPELLANT/ACCUSED:
NALLAMMA, W/O. RAMAN, KODALAMKUZHIYIL,
NAGAPARAMB DESOM, NADUVATTOM, TIRUR TALUK.
BY ADVS.
SHRI.T.K.SAIDALIKUTTY
SRI.BIJU MARTIN
RESPONDENTS/COMPLAINANT:
1 EXCISE RANGE OFFICER, KUTTIPPURAM.
2 THE STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
SRI. ALEX M. THOMBRA, SR. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2025,
ALONG WITH CRL.R.C. NO. 5 OF 2021, THE COURT ON 11.12.2025 DELIVERED
THE FOLLOWING:
2
Crl. Appeal No. 951 of 2011 & batch
2025:KER:95419
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 11TH DAY OF DECEMBER 2025 / 20TH AGRAHAYANA, 1947
CRL.RC NO. 5 OF 2021
JUDGMENT DATED 22.03.2011 IN SC NO.419 OF 2020 OF ADDITIONAL
DISTRICT COURT (ADHOC)-I, MANJERI
CP NO.30 OF 2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,TIRUR
PETITIONER:
SUO MOTU REVISION CASE REGISTERED AS PER THE ORDER IN
CRL.A.NO.951/2011 DATED 08.03.2021
PARTIES:
1 NALLAMMA, W/O. RAMAN, KODALAMKUZHIYIL,
NAGAPARAMB DESOM, NADUVATTOM, TIRUR TALUK.
2 THE EXCISE RANGE OFFICER, KUTTIPPURAM.
3 THE STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
SRI. ALEX M. THOMBRA, SR. PUBLIC PROSECUTOR
THIS CRIMINAL REVISION CASE HAVING COME UP FOR ADMISSION ON
10.12.2025, ALONG WITH CRL.A.951/2011, THE COURT ON 11.12.2025
DELIVERED THE FOLLOWING:
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Crl. Appeal No. 951 of 2011 & batch
2025:KER:95419
JOHNSON JOHN, J.
---------------------------------------------------------
Crl. Appeal No. 951 of 2011
&
Crl. Revision Case No. 5 of 2021
---------------------------------------------------------
Dated this the 11th day of December, 2025
JUDGMENT
The appellant was convicted and sentenced to undergo simple
imprisonment for one month and to pay a fine of Rs.25,000/- for the
offence under Section 8(1) r/w 8(2) of the Abkari Act by the Additional
Sessions Judge (Adhoc)-I, Manjeri Division as per judgment dated
22.03.2011.
2. The appellant is challenging the legality of the findings entered
and the sentence imposed by the trial court. Since the fine amount
imposed by the trial court is below the statutory minimum as provided
under Section 8(2) of the Abkari Act, this Court registered the suo moto
Criminal Revision Case as per order dated 08.03.2021.
3. As per the prosecution case, on 04.11.2008, at about 5.45
p.m., while the Excise Inspector, Kuttiippuram Range and party were on
patrol duty, they found the accused in possession of one litre of arrack in
a one litre bottle at kanhiramkad in Tirur Taluk.
4. When the accused appeared before the trial court and pleaded
Crl. Appeal No. 951 of 2011 & batch
2025:KER:95419
not guilty to the charge, PWs 1 to 6 were examined and Exhibits P1 to
P6 and MO1 were marked from the side of the prosecution and no
evidence adduced from the side of the defence.
5. After hearing both sides and analysing the evidence, the trial
court found the accused guilty under Section 8(1) of the Abkari Act and
imposed a sentence as aforesaid.
6. Heard Sri. T.K. Saidalikutty, the learned counsel for the
appellant and Sri. Alex M. Thombra, the learned Senior Public
Prosecutor.
7. The learned counsel for the appellant argued that all the
independent witnesses turned hostile to the prosecution and the
occurrence witnesses who supported the prosecution are PWs 1 and 2
and their evidence does not tally with Exhibit P1 mahazar on material
particulars and therefore, the accused is entitled for the benefit of
reasonable doubt. It is also argued that PWs 1 and 2 have no case that
the accused was arrested at the time of occurrence and there is no
proper dock identification of the accused at the time of trial by PWs 1
and 2.
8. PW1 is the Excise Inspector who detected the offence and PW2
Crl. Appeal No. 951 of 2011 & batch
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is the excise guard who accompanied PW1 at the time of occurrence.
PWs 1 and 2 deposed before the court that while on patrol duty, they
saw the accused coming with one litre plastic bottle and after detaining
the accused and seizing the bottle, they took 200 ml. of arrack as
sample in a 300 ml. bottle and affixed seal. But, a perusal of Exhibit P1
mahazar shows that 200 ml. of arrack was taken as sample in a 375 ml.
bottle and there was no attempt on the part of the prosecution to clarify
the position as to whether the sample was taken in a 375 ml. bottle as
stated in Exhibit P1 or in a 300 ml. bottle as deposed by PWs 1 and 2. It
is also pertinent to note that according to PW1, only one sample was
taken in a 300 ml. bottle; but according to PW2, sample was taken in
two bottles.
9. PWs 4 and 5 are the independent witnesses examined from the
side of the prosecution; but, they turned hostile to the prosecution
stating that they have not witnessed the occurrence and that the
accused is not known to them.
10. PW3 excise guard only deposed that he produced the
properties before the court on 05.11.2008. Exhibit P2 crime and
occurrence report and P3 property list reached the court only at 3.15
p.m. on 05.11.2008 and there is no explanation for the delay.
Crl. Appeal No. 951 of 2011 & batch
2025:KER:95419
11. The evidence of PW6, Excise Inspector, shows that he
conducted the investigation of this case from 08.1.2010 onwards and
filed final report after completing the investigation. Exhibit P4 is the copy
of the forwarding note and Exhibit P6 is the report of the chemical
examiner. Exhibit P6, chemical analysis report dated 11.1.2010, shows
that the sample forwarded from the court, as per letter dated
18.11.2009, through excise guard, Praphulla Chandran, was received in
the Chemical Examiner's Laboratory on 18.11.2008. No witness was
examined from the side of the prosecution to clarify the inconsistency in
the dates mentioned in Exhibit P6, Chemical examination report.
12. The decision of this Court in Vijayan @ Puthoor Vijayan v.
State of Kerala [2021 (5) KHC 347] shows the steps to be followed by
the officer collecting the sample, thondi clerk who is authorised to
receive the thondi and the measures to be ensured by the chemical
examiner. The same reads 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;
Crl. Appeal No. 951 of 2011 & batch
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(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
Crl. Appeal No. 951 of 2011 & batch
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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 S.293 Cr.PC."
13. The identification of an accused in court by the witness is the
substantive evidence and even if the witness and the accused are
persons known to each other, it is obligatory for the witness to identify
the accused in court by pointing out that the person referred to by him in
the evidence is the person who is standing in the dock and it is obligatory
for the court to record in the deposition that the witness had identified
the accused in the dock, as held by this Court in Vayalali Girishan and
Others v. State of Kerala [2016 KHC 204] and Shaji @ Babu @ Japan
Shaji v. State of Kerala [2021 (5) KHC SN 27].
14. In this case, the prosecution has not examined the thondi
clerk or the excise guard through whom the sample was sent to the
Chemical Examiner's Laboratory to prove the tamper proof dispatch to
the laboratory. Further, the evidence of PWs 1 and 2 regarding the
collection of sample at the place of occurrence does not tally with Exhibit
Crl. Appeal No. 951 of 2011 & batch
2025:KER:95419
P1 mahazar. In the deposition of PWs 1 and 2, it is not recorded by the
trial court that the said witness had identified the accused in the dock.
Since the trial court failed to consider the above vital aspects while
appreciating the evidence, the conviction and sentence passed by the
trial court cannot be sustained.
In the result, the appeal is allowed. The conviction and sentence
imposed by the trial court against the appellant is hereby set aside and
she is acquitted of the offence under Section 8(1) r/w 8(2) of the Abkari
Act. The bail bond executed by the appellant shall stand cancelled and
she is set at liberty forthwith. Since the accused is acquitted, Criminal
Revision Case is closed.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
