Kerala High Court
Mani vs State Of Kerala on 7 February, 2025
CRL.A NO. 470 OF 2013
1
2025:KER:10169
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
FRIDAY, THE 7
DAY OF FEBRUARY 2025 / 18TH MAGHA,
1946
CRL.A NO. 470 OF 2013
SC NO.400 OF 2010 OF ADDITIONAL DISTRICT & SESSIONS COURT
ADHOC - I, PALAKKAD
APPELLANT/ACCUSED:
ANI,
M
AGED 45 YEARS,
S/O.BALAN, KALATHUMPADI HOUSE, PARUTHIPULLY, KOTTAYI,
PALAKKAD DISTRICT.
BY ADV SRI.NIREESH MATHEW
RESPONDENT/COMPLAINANT:
TATE OF KERALA
S
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
SR.PUBLIC PROSECUTOR-SRI.RENJIT GEORGE
HIS
T CRIMINAL
APPEALHAVING
BEEN
FINALLY
HEARD
ON
07.02.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 470 OF 2013
2
2025:KER:10169
J U D G M E N T
This appeal is at the instance of the sole accused in SC
No.400of2010onthefileoftheAdditionalDistrictandSessions
Judge Ad Hoc-I, Palakkad, challenging his conviction and
sentence under Sections 8(1) and 8(2) of the Abkari Act, vide
judgment dated 25.03.2013.
2. The prosecution case is that, on 01.07.2009 around
5.10p.m.,theaccusedwasfoundinpossessionof4½litresofillicit
arrack for the purpose of sale, behind the toddyshopatKalikavu.
PW6-Sub Inspector of Police, Kottayi Police Station and party
detected the offence.
3.Oncommittalandonappearanceoftheaccusedbeforethe
trial court,chargewasframedunderSections8(1)and8(2)ofthe
Abkari Act, towhichhepleadednotguiltyandclaimedtobetried.
PWs1to6wereexamined,Exts.P1toP11weremarkedandMO1
was identified from the side of the prosecution to prove its case.
4. On closure of prosecution evidence, accused was
questioned under Section 313 of Cr.P.C. He denied all the
incriminating circumstances brought on record, and pleaded
innocence. No defence evidence was adduced.
CRL.A NO. 470 OF 2013
3
2025:KER:10169
5. On analysing the facts and evidence and on hearing the
rivalcontentionsfromeitherside,thetrialcourtfoundtheaccused
guilty under Section 8(1) read with Section 8(2) of the Kerala
Abkari Act,andhewasconvictedthereunder.Hewassentencedto
undergo rigorous imprisonment for 1 year and to pay fine of
Rs.1,00,000/-, with a default sentence of simple imprisonmentfor
four months. Aggrieved by the conviction and sentence, the
accused preferred this appeal.
6. Heard learned counsel for the appellant/accused and
learned Public Prosecutor for the respondent-State.
7.Learnedcounselfortheappellantwouldcontendthatthere
was no specimen impression of the seal in the seizure mahazar,
andtherewasinordinatedelay,inproducingthecontrabandbefore
the court. Moreover, presence of PW1 in the detection team could
not be proved by prosecution. The delay in analysing the sample
alsowillspeakagainstthegenuinenessoftheprosecutioncase.So,
according to him, the trial court went wrong in convicting the
accused and hence the impugned judgment is liable to be set aside.
8. Ext.P2 is the seizure mahazar prepared by PW6. That
document will not show the specimen impression of the seal with
whichthesamplebottlesweresealed.Ext.P2mahazarwillsaythat
CRL.A NO. 470 OF 2013
4
2025:KER:10169
'SHO' seal was affixed in the sample bottles and also in the can.
Ext.P9forwardingnoteshowsthespecimenimpressionoftheseal.
Ifthespecimensealwastherewiththepoliceparty,atthetimeof
detection, there was no reason for them, not to affix that seal in
the seizure mahazar also. In the absence of specimen seal in the
seizure mahazar, genuineness of the seal found in the sample
bottle will lose its authenticity. The prosecution is bound to prove
the link evidence starting from the seizure of the sample, till it
reaches the hands of theanalyst.Intheabsenceofspecimenseal
intheseizuremahazar,itisdifficulttoholdthat,thesamplewhich
reached the Chemical Examiner's laboratory was thesamesample
takenfromthecontraband,allegedlyseizedfromthepossessionof
the accused. Since there is no specimen impression of the seal in
the seizure mahazar, it is avalidgroundtodoubtthegenuineness
ofthesealfoundinthesamplebottle,whichreachedtheChemical
Examiner's laboratory. (See Moothedath Sivadasan v. State of
Kerala [2021 (1) KLT 744], Bhaskaran K. v. State of Kerala
and Another [2020 KHC 5296], and Sasidharan v. State of
Kerala[2007 (1) KLT 720]).
9. Ext.P8 property list will show that the sample bottles and
thecancontainingtheremainderofthecontrabandwereproduced
CRL.A NO. 470 OF 2013
5
2025:KER:10169
before the court only on 05.07.2009. The detection and seizure
were on 01.07.2009.Prosecutionfailedtoexplainthedelayoffive
daysinproducingthecontrabandandthesamplebottlesbeforethe
court. That delay will speak against the genuineness of the
prosecution case.
10. PW1-Head Constable is claiming that he was present
along with PW6 at the time of detection. But Ext.P2 seizure
mahazar will not show his presence, as he had not signed that
document. The accused contended that, PW1 was notthereinthe
detection team. The prosecution could not prove the presence of
PW1 at the time of detection, and so histestimonyisnotliableto
be believed.
11. PWs 2 and3-theindependentwitnessesturnedhostileto
the prosecution, though they admitted their signature in Ext.P2
seizuremahazar.Theyhavenotseenpoliceseizinganycontraband
from the possession of the accused. So, the only remaining
evidence is of PW6-the detecting officer. He himself investigated
the case and questioned the witnesses. Learned counsel for the
accused would contend that investigation by PW6 caused much
prejudice to him, as he himself was the detecting officer. No
explanation is offered by prosecution for not conducting
CRL.A NO. 470 OF 2013
6
2025:KER:10169
investigationbyanyotherofficerofhigherrankorsimilarrank.So,
theuncorroboratedtestimonyofPW1isnotliabletobeacceptedto
find the accused guilty under Sections 8(1)and8(2)oftheAbkari
Act, in thelightofthematerialdefectspointedoutearlier,suchas
absenceofspecimenimpressionofthesealintheseizuremahazar,
delay in production of the contraband before court etc. etc.
12.Advertingtothefactsandcircumstancesaspointedoutin
theforegoingparagraphs,thisCourtisoftheviewthattheaccused
wasnotliabletobeconvictedunderSection8(1)readwithSection
8(2) oftheAbkariAct.Thetrialcourtfailedtoappreciatethefacts
and evidence in its correct perspective, and so, the impugned
judgment is liable to be interfered with.
13. In the result, setting aside the impugned judgment, the
accused is found not guilty of the offences alleged under Section
8(1) read with Section 8(2) of the Abkari Act and he is acquitted
thereunder. His bail bond is cancelled and he is set at liberty
forthwith.
Accordingly, the appeal stands allowed.
Sd/-
SOPHY THOMAS
JUDGE
DSV/-
