Kerala High Court
Vidyadharan vs State Of Kerala on 28 February, 2025
Crl.Appeal No.1784 of 2007
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946
CRL.A NO. 1784 OF 2007
AGAINST THE JUDGMENT DATED 21.08.2007 IN SC NO.420 OF
2000 ON THE FILE OF THE COURT OF SESSION, ALAPPUZHA.
APPELLANT/1ST ACCUSED:
VIDYADHARAN,
S/O GANGADHARAN,
PALAKKUNNEL VEEDU,
KARAKKOTHUMURIYIL,
MULAKUZHA VILLAGE, MAVELIKARA.
BY ADVS.
SRI.JOHN BRITTO
SRI.C.A.RAJEEV
RESPONDENT/COMPLAINANT:
STATE OF KERALA
THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.02.2025, THE COURT ON 28.02.2025 DELIVERED THE
FOLLOWING:
Crl.Appeal No.1784 of 2007
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C.S.SUDHA, J.
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Crl.Appeal No.1784 of 2007
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Dated this the 28th day of February 2025
JUDGMENT
In this appeal filed under Section 374 (2) Cr.P.C., the
appellant, the first accused in S.C.No.420/2000 on the file of the
Court of Session, Alappuzha, challenges the conviction entered
and sentence passed against him for the offence punishable under
Section 8(1) read with Section 8(2) of the Kerala Abkari Act, 1
of 1077 (the Act).
2. The prosecution case is that on 07/08/1999 at
about 03:50 a.m., the accused persons, two in number were found
in possession of 10 litres of arrack for sale in a black can. The
first accused was carrying the can in a bag with the help of the
second accused. The first accused was arrested on the spot. The
second accused took to his heels on seeing the police. He was
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thereafter arrested on 04/11/1999. Hence, as per the final
report/charge sheet, the accused persons were alleged to have
committed the offence punishable under Section 8(1) read with
Section 8(2) and Section 55 of the Act.
3. Crime no.300/1999, Mavelikkara police station
was registered by PW1, the Sub Inspector, Mavelikkara police
station, who is the detecting officer. PW5, the Additional Sub
Inspector, Mavelikkara police station, is the investigating officer,
who on completion of the investigation submitted the final
report/charge sheet before the court alleging the commission of
the offences punishable under the aforementioned Sections by the
accused persons.
4. On appearance of both the accused persons, 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, Alappuzha. The case was taken
on file as S.C.No.420/2000 and thereafter made over to the
Additional Sessions Judge-I, Mavelikkara for trial and disposal.
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When the accused persons appeared before the trial court, a
charge under Sections 8(2) and 55(a) of the Act was framed, read
over and explained to the accused persons to which they pleaded
not guilty.
5. On behalf of the prosecution, PW1 to PW5 were
examined and Exts.P1 to P8 and MO.1 to MO.3 were marked in
support of the case. After the close of the prosecution evidence,
the accused persons were questioned under Section 313(1)(b)
Cr.P.C. with regard to the incriminating circumstances appearing
against them in the evidence of the prosecution. The accused
persons denied those circumstances and maintained their
innocence.
6. As the trial court did not find it a fit case to
acquit the accused persons under Section 232 Cr.P.C., they were
asked to enter on their defence and adduce evidence in support
thereof. No oral or documentary evidence was adduced by the
accused persons.
7. On a consideration of the oral and documentary
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evidence and after hearing both sides, the trial court by the
impugned judgment found no evidence to find the second accused
guilty of the offences alleged against him and hence he was
acquitted under Section 235(1) Cr.P.C. of all the offences alleged
against him. The first accused has been found guilty for the
offence punishable under Section 8(2) of Act and hence has been
sentenced to undergo rigorous imprisonment for a period of four
years and to a fine of ₹1,00,000/- and in default to rigorous
imprisonment for two years. Set off under Section 428 Cr.P.C.
has been allowed. Aggrieved, the first accused/appellant 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 first accused/appellant by the trial court are sustainable
or not.
9. Heard both sides.
10. PW1, the Sub Inspector of Police, Mavelikkara,
the detecting officer deposed that while he along with his team
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were on night patrol duty at about 03:50 a.m. when they reached
the place of occurrence, they saw the first accused carrying a bag
in his hand and walking along with another man through the
public road leading from Thattarambalam-Nangiarkulangara
situated on the front of Revathy timbers. On seeing the police
party, both the said persons attempted to take to their heels. The
first accused was successfully intercepted by the police party
whereas the other man ran away in the darkness. When the bag in
the possession of the first accused was examined, it was found to
contain a black can having a capacity of the 10 ltrs which
contained a liquid. The liquid on examination by smell and taste
was found to be arrack. Two samples were collected from the
contraband arrack in two bottles having capacity of 375 ml each.
The sample bottles and the can containing the residue arrack were
closed, labelled, sealed and seized as per Ext.P1 mahazar.
10.1. PW2, Head Constable, who is stated to have
been present in the team along with PW1 supports the prosecution
case.
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10.2. PW3 admitted that he is an attestor to Ext.P1
mahazar. However, he turned hostile and deposed that he had
neither seen the incident nor stated to the police that he had seen
the incident.
10.3. PW4 another independent witness denied being
an attestor to Ext.P1 seizure mahazar. He deposed that he had
neither seen the incident nor stated to the police that he had seen
the incident.
10.4. PW5, Additional Sub Inspector, Mavelikkara
police station, deposed that as per the directions of the Circle
Inspector, he had conducted investigation in this case. The
accused was produced before the court along with the remand
application. He had submitted forwarding note requesting the
forwarding of the sample for chemical examination. Ext.P8 is
the chemical report received on examination of the sample.
11. It is true that merely because the independent
witnesses turn hostile, the same is no ground to reject the
prosecution case, provided, the testimony of the official witnesses
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is credible and inspires confidence in the mind of the court to
arrive at a conclusion regarding the guilt of the accused. Now
the question is whether the testimony of PW1 and PW2 and the
other materials available on record are sufficient to establish the
prosecution case. As noticed earlier, PW1 and PW2 deposed that
after the contraband was seized and samples drawn from the
same, the sample bottles as well as the can containing the residue
were closed, sealed and labelled. Neither in Ext.P1 mahazar nor
in the box, PW1 has a case that he had affixed his personal seal or
his office seal. He merely says that the sample bottles as well as
the can containing the residue were closed, sealed and labelled.
The specimen impression of the seal alleged to have been affixed
has not been given in the mahazar. A copy of the forwarding note
has been produced, though PW5, the investigating officer, claims
that a forwarding note had been prepared by PW1 and that it was
on the basis of the same, the sample bottle had been forwarded for
chemical examination.
12. This Court in Bhaskaran K. v. State of Kerala,
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2020 KHC 5296 has held that 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 of the genuineness of the sample
produced in the court. In Rajamma v. State of Kerala, 2014 (1)
KLT 506, this Court has held that if the specimen of the seal
affixed on 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 so provided is tallying with the seal
affixed on the sample, no evidentiary value can be attached to the
chemical analysis report. In Ramachandran v. State of Kerala,
2021 (1) KLT 793 while dealing with a case in which forwarding
note/requisition for sending the sample to the laboratory was not
produced and marked, it has been held that the prosecution cannot
establish the tamper-proof despatch of the sample to the
laboratory as there was no satisfactory link evidence to show that
it was the same sample that was drawn from the contraband
seized that eventually reached the Chemical Examiner's
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laboratory. Further, mere production of a laboratory report that
the sample tested was contraband substance cannot be conclusive
proof by itself. The sample seized and that tested have to be co-
related. (See Vijay Pandey v. State of Uttar Pradesh, AIR
2019 SC 3569). That being the position, I find that the accused is
entitled to the benefit of doubt.
In the result, the appeal is allowed. The impugned
judgment is set aside. The conviction and sentence imposed by
the trial court is set aside and the first accused/appellant 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
