Kerala High Court
Rajan vs State Of Kerala on 29 January, 2025
CRL.A NO. 605 OF 2008
1
2025:KER:6977
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
WEDNESDAY, THE 29
DAY OF JANUARY 2025 / 9TH MAGHA,
1946
CRL.A NO. 605 OF 2008
SC NO.120 OF 2006 OF ADDITIONAL DISTRICT & SESSIONS COURT
(ADHOC) FAST TRACK COURT-III, PATHANAMTHITTA
APPELLANT/ACCUSED:
AJAN, S/O.RAMAKRISHNAN,
R
RAJAGIRIYIL VEEDU, NEAR SETTLEMENT COLONY,
ELAVUMTHITTA MURI, MEZHUVELI VILLAGE, ADOOR.
BY ADV SRI.VINOY VARGHESE KALLUMOOTTILL
RESPONDENTS:
1
TATE OF KERALA,
S
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2
UB INSPECTOR OF POLICE,
S
PANDALAM POLICE STATION.
OTHER PRESENT:
PUBLIC PROSECUTOR-SMT.SEENA C.
THIS
CRIMINAL
APPEALHAVING
BEEN
FINALLY
HEARD
ON
29.01.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 605 OF 2008
2
2025:KER:6977
J U D G M E N T
This appeal is at the instance of the sole accused in SC
No.120 of 2006 on the file of the Additional District and Sessions
Judge (Ad Hoc) Fast Track Court-III, Pathanamthitta, challenging
his conviction and sentence under Sections 8(1) and 8(2) of the
Abkari Act, vide judgment dated 27.02.2008.
2. The prosecutioncaseisthaton23.03.2004at11.00a.m.,
the accused was found in possession of one litre of arrack in a
plasticbottle,atthecourtyardofhishouse,forthepurposeofsale.
PW1-Sub Inspector of Police, Pandalam, and Police party detected
the offence.
3.Oncommittalandonappearanceoftheaccusedbeforethe
trial court,chargewasframedunderSections8(1)and8(2)ofthe
Abkari Act, towhichhepleadednotguiltyandclaimedtobetried.
PWs 1 to 5 were examined and Exts.P1 to P9 were marked from
the side of the prosecution to prove its case. MOs 1 and 2 were
identified.
4. On closure of prosecution evidence, accused was
questioned under Section 313 of Cr.P.C. He denied all the
CRL.A NO. 605 OF 2008
3
2025:KER:6977
incriminating circumstances brought on record, and pleaded
innocence. No defence evidence was adduced.
5. On analysing the facts and evidence and on hearing the
rivalcontentionsfromeitherside,thetrialcourtfoundtheaccused
guilty under Section 8(1) of the Abkari Act and he was convicted
thereunder.HewassentencedunderSection8(2)oftheAbkariAct
to undergo rigorous imprisonment for 1½ yearsandtopayfineof
Rs.1,00,000/-,withadefaultsentenceofrigorousimprisonmentfor
sixmonths.Aggrievedbytheconvictionandsentence,theaccused
preferred this appeal.
6. Pending appeal, the appellant passed away. Copy of his
death certificate shows that he died on 09.02.2011. But since the
sentenceincludedfineamountofRs.1,00,000/-also,inspiteofhis
death,theappealwillnotabate.(SeeRamesan(dead)Through
Lr. Girija A. v. State of Kerala[2020 KHC 6059].
7. Heard learnedcounselfortheappellantandlearnedPublic
Prosecutor for the respondent-State.
8. Learned counsel for the appellant would contend that no
contrabandarticleswereseizedfromthepossessionoftheaccused
and except the interested testimony of PWs 1 and 4 - the official
CRL.A NO. 605 OF 2008
4
2025:KER:6977
witnesses, there was nothingtosubstantiatetheprosecutioncase.
The specimen impression of the seal, if any, used for sealing the
samplebottlewasnotseenaffixedintheseizuremahazarorinthe
forwarding note. So prosecution failed to establish the link
evidence, that the sample analysed in the laboratory was taken
from the contraband allegedly seized from the possession of the
accused. So, according to him, learned trial Judge went wrong in
convicting the accused under Section 8(1) of the Abkari Act and
sentencing him under Section 8(2) of the Abkari Act.
9. Ext.P1 is the seizure mahazar prepared by PW1 on
23.03.2004 at the time of alleged seizure of thecontraband,from
the possession of the accused. Though it is stated in the seizure
mahazar,thatthesamplebottleaswellasthebottlecontainingthe
remaining portion of the contraband were sealed and taken into
custody, the specimen impression of the seal used for sealing the
bottles is not seenaffixedintheseizuremahazar.Eventhenature
of the seal used is not mentioned in Ext.P1 seizure mahazar. In
Ext.P7 forwarding note also, nospecimenimpressionofthesealis
affixed. PW1-the detecting officer admitted before court that the
specimen impression of the seal was not produced before court.
CRL.A NO. 605 OF 2008
5
2025:KER:6977
10. When the specimen impression ofthesealaffixedonthe
seizure mahazar was not produced before court, it is difficult to
hold that, the sample which reached the Chemical Examiner's
laboratory was the sample taken from the contraband allegedly
seized from the possession of the accused. Absence of specimen
seal in the seizure mahazar will cast serious doubt regarding the
genuineness of the seal found in the sample bottle. The specimen
impression of the seal in the forwarding note also is an important
factor to verify the genuineness ofthesample,seizedattheplace
of occurrence. The specimen impression of the seal in the seizure
mahazar as well as in the forwarding note enables the court to
satisfy the genuineness ofthesampleproducedbeforecourt.(See
Moothedath Sivadasan v. State of Kerala [2021 (1) KLT 744],
BhaskaranK.v.StateofKeralaandAnother[2020KHC5296],
Rajammav.StateofKerala[2014(1)KLT506]andSasidharan
v. State of Kerala[2007 (1) KLT 720]).
11.Inthecaseonhandnospecimenimpressionofthesealis
there in Ext.P1 seizure mahazar or in Ext. P7forwardingnoteand
moreoverPW1admittedbeforecourt,thatthespecimenimpression
ofthesealwasnotproducedbyhimbeforeCourtalso.Soithasto
CRL.A NO. 605 OF 2008
6
2025:KER:6977
be held that prosecution failed to prove tamper proof despatch of
the sample, to show that the sample taken from the contraband
seized from the accused was the sample whichreachedthehands
of the Chemical Examiner.
12. PW1- the detecting officer himself investigated the case
and filed Final Report against the accused. The independent
witnessesdidnotsupporttheprosecutioncase,thattheysawPW1
apprehending the accused and seizing the contraband from his
possession. But PWs 2 and 3 were not declared hostile or cross
examined by prosecution. So their testimony is liable to be
accepted.
13. Ext.P2 arrest memo saidtohavebeenpreparedbyPW1,
at the time of arrest of the accused on23.03.2004at11.00a.m.,
shows the crime number as Crime No.123 of 2004 of Pandalam
PoliceStation.Ext.P4FirstInformationReportshowsthatthecrime
was registered at Pandalam Police Station at 12.30 p.m. on
23.03.2004. So, if Ext.P2 was prepared at 11.00 a.m., it may not
carry the crime number, which was registered at a later point of
time. The presence of crime number in the arrestmemoprepared
by the detecting officer at the spot of occurrence gives rise to
CRL.A NO. 605 OF 2008
7
2025:KER:6977
either of the two inferences, in the absence of any explanation
offeredbytheprosecution.OneisthattheFirstInformationReport
was recorded prior to the alleged recovery of the contraband and
the second inference was that thenumberoftheFirstInformation
Report was inserted in the arrest memo after its registration. In
both situations, it seriously reflects upon the veracity of the
prosecution version of the incident and it creates a good deal of
doubt about recovery ofthecontraband,inthemanner,asalleged
by the prosecution. (See Rafeeque v. Sub Inspector of Police
[2020 (4) KLT 188].
14. In the case on hand, the accused was arrested on
23.03.2004 at 11.00 a.m. and Ext.P2 arrest memo was prepared.
Presenceofcrimenumber,whichwasregisteredonlyat12.30p.m.
on that day, is a ground to doubt the recovery and arrest in the
manner as alleged by prosecution.
15.Forallthesereasons,prosecutioncouldnotproveitscase
beyond reasonable doubt and the accused was entitled to get the
benefit of those doubts. So, the conviction and sentence of the
accused by the trial court is liable to be interfered with.
16. In the result, the accused is acquitted, setting aside the
CRL.A NO. 605 OF 2008
8
2025:KER:6977
impugned judgment of conviction and sentence. His bail bond is
cancelled.
Accordingly the appeal stands allowed.
d/-
S
SOPHY THOMAS
JUDGE
DSV/-
