Kerala High Court
Mohandas vs State Of Kerala on 21 February, 2025
Crl.Appeal No.124 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 21ST DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946
CRL.A NO. 124 OF 2014
AGAINST THE JUDGMENT DATED 09/01/2014 IN SC NO.538 OF
2012 ON THE FILE OF THE COURT OF SESSION, THODUPUZHA
APPELLANT/ACCUSED
MOHANDAS
AGED 66 YEARS,
S/O.MATHAI, ARACKAL HOUSE,
VENGALLOR KARA,
MANACKADU VILLAGE,
THODUPUZHA TALUK.
BY ADV ANIL K.MUHAMED
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
17.02.2025, THE COURT ON 21.02.2025 DELIVERED THE
FOLLOWING:
Crl.Appeal No.124 of 2014
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C.S.SUDHA, J.
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Crl.Appeal No.124 of 2014
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Dated this the 21st day of February 2025
JUDGMENT
In this appeal filed under Section 374 (2) Cr.P.C., the
appellant who is the sole accused in S.C.No.538 of 2012 on the
file of the Court of Session, Thodupuzha, challenges the
conviction entered and sentence passed against him for the
offence punishable under Section 55(i) of the Kerala Abkari Act,
1 of 1077 (the Act).
2. The prosecution case is that on 15/12/2011 at
07:45 a.m., the accused was found illegally selling liquor at his
house in Vengalloor kara, Manackadu Village, Thodupuzha
Taluk.
3. Crime No.52/2011 Excise Range Office,
Thodupuzha, that is, Ext.P7 crime and occurrence report was
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registered by PW4 when PW5, the detecting officer produced the
accused, material objects and the connected documents relating to
the case. PW4 conducted the investigation and on completion of
the investigation submitted the final report before the court
alleging the commission of the offence punishable under the
aforementioned Section by the accused.
4. On appearance of the accused, the jurisdictional
magistrate after complying with all the necessary formalities
contemplated under Section 209 Cr.P.C., committed the case to
the Court of Session, Thodupuzha. The case was taken on file as
S.C.No.538/2012 and made over to the Additional Sessions
Judge-III (Adhoc-I), Thodupuzha, for trial and disposal.
5. On behalf of the prosecution, PW1 to PW6 were
examined and Exts.P1 to P12 and MO.1 to MO.6 were marked.
After the close of the prosecution evidence, the accused was
questioned under Section 313(1)(b) Cr.P.C. with regard to the
incriminating circumstances appearing against him in the
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evidence of the prosecution. The accused denied all those
circumstances and maintained his innocence.
6. As the trial court did not find it a fit case to
acquit the accused under Section 232 Cr.P.C., he was asked to
enter on his defence and adduce evidence in support thereof. No
oral or documentary evidence was adduced by the accused.
7. On a consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment found the accused guilty of the offence
punishable under Section 55(i) of the Act and hence sentenced
him to simple imprisonment for a period of one year and to a fine
of ₹1,00,000/- and in default to simple imprisonment for three
months. Set off under Section 428 Cr.P.C. has been allowed.
Aggrieved, the accused has come up in appeal.
8. The only point that arises for consideration in
this appeal is whether the conviction entered and sentence passed
against the accused by the trial court are sustainable or not.
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9. Heard both sides.
10. PW5, Assistant Excise Inspector, Thodupuzha
Excise Range, deposed that on 15/12/2011 while he along with
party were on patrol duty, he got reliable information about the
illegal sale of liquor by the accused at his residence. Therefore,
he prepared a search memo and forwarded the same to the court
and then he along with the party and witnesses proceeded to the
house of the accused. When they reached in front of the house of
the accused, he found the accused standing in the veranda of the
house holding a bottle and pouring liquid from the bottle to a glass
held by a person standing in the courtyard. When the said person
saw the Excise Party, he took to his heels. PW5 verified the
contents of the bottle in the possession of the accused. The bottle
having a capacity of 1.5 litres contained 600 ml of liquor. From
the veranda of the house, another bottle having a capacity of 1.5
litres containing 1 litre of liquor was also found. The glass that
was abandoned by the person who took to his heels was recovered
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from the courtyard of the house and the same had the smell of
liquor. PW5 also found 1 litre bottle containing water and 180 ml
measurement vessel in the veranda. As the accused was found
engaged in the sale of liquor, he arrested the accused and seized
the contraband articles as per Ext.P1 mahazar. Thereafter, the
accused, records and the contraband articles were handed over to
PW4.
10.1. PW4, Excise Inspector, deposed that on receipt
of the accused, the contraband articles and the connected records,
he registered crime no.52/2011, Excise Range Office,
Thodupuzha, that is, Ext.P7 crime and occurrence report. He
made necessary arrangements to forward the sample that was
drawn from the contraband article for chemical examination and
Ext.P8 is the copy of the forwarding note. He completed the
investigation and on completion of investigation he submitted the
final report before the court. Ext.P12 chemical examination
report confirms that the liquid found in the bottle seized from the
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accused is liquor.
10.2. PW1, an independent witness admitted his
signature in Ext.P1 mahazar, Ext.P2 arrest memo and Ext.P3
search list. PW1 admitted to have witnessed the search, seizure
and arrest of the accused. He identified MOs. 1 and 2 as the liquor
bottles which were seized from the house of the accused.
10.3. PW6, another independent witness admitted his
signature in Ext.P1 mahazar. However, he denied having
witnessed the incident or having stated to the investigating officer
that he had seen the incident.
11. In Ext.P1 mahazar, PW1, the detecting officer
says that the sample was drawn by him and the bottle containing
the sample and the bottles containing the residue liquor was
closed, sealed, labelled and his personal seal affixed. The
specimen of the impression of the seal is also given in Ext.P1
mahazar. However, in Ext.P8 forwarding note, no impression of
the seal alleged to have been affixed on the sample bottle and the
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bottle containing the residue has been given. The sample seal has
not been produced separately. The nature of the seal used by the
detecting officer shall be mentioned in the seizure mahazar and
the specimen of the seal shall be produced in the court, so as to
enable the court to satisfy itself with the genuineness of the
sample produced in the court. If the specimen of the seal affixed
in the bottle containing the sample is not produced before the
court and forwarded to the chemical examiner for verification to
ensure that the sample seal provided is tallying with the seal
affixed on the sample, no evidentiary value can be attached to the
chemical analysis report. (See Bhaskaran K. v. State of Kerala,
2020 KHC 5296 , Rajamma v. State of Kerala, 2014 (1) KLT
506) Further, mere production of a laboratory report that the
sample tested is contraband substance cannot be conclusive proof
by itself. The sample seized and that tested have to be correlated.
(See Vijay Pandey v. State of U.P. , AIR 2019 SC 3569). In
these circumstances, I find that the accused is entitled to the
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benefit of doubt.
In the result, the appeal is allowed and the conviction and
sentence imposed against the appellant by the trial court for the
offences punishable under Section 55(i) of the Act is set aside.
The accused is acquitted under Section 235(1) Cr.P.C. He is set
at liberty and his bail bond shall stand cancelled.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
