Kerala High Court
Sasi vs State Of Kerala on 15 July, 2025
2025:KER:51966
CRL.A NO. 588 OF 2011
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TH
TUESDAY, THE 15 DAY OF JULY 2025 / 24TH ASHADHA, 1947
CRL.A NO. 588 OF 2011
AGAINST THE JUDGMENT DATED 29.03.2011 IN SC NO.145 OF 2010 OF
ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM ARISING OUT OF THE
ORDER/JUDGMENT IN CP NO.49 OF 2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS
COURT,PERUMBAVOOR
APPELLANT/ACCUSED:
SASI, AGED 44 YEARS,
S/O. KUNJAPPAN, MUTHALINGA HOUSE,
PAANIYELI KARA, KOMBANADU VILLAGE,
KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.
BY ADVS.
SRI.GEO PAUL
SRI.S.ASHOK KUMAR.
SRI.NOEL JOSEPH
SRI.C.R.PRAMOD
SMT.P.T.RAZEENA
SRI.K.V.REJANISH
SRI.M.B.SANDEEP
RESPONDENT/COMPLAINANT:
STATE OF KERALA
THE EXCISE INSPECTOR, PERUMBAVOOR, BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.N.S.HASNA MOL -PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON 14.07.2025,
THE COURT ON 15.07.2025 DELIVERED THE FOLLOWING:
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2
JUDGMENT
The sole accused in S.C.No.145/2010, on the file
of Additional Sessions Court(ADHOC-I), Ernakulam, has
preferred this appeal challenging the judgment of
conviction and order of sentence passed against him for
the offence punishable under Section 8(2) r/w 8(1) of
the Abkari Act.
2. The prosecution allegation in brief is that, on
09.04.2009, at 08.00 am., the accused was found in
possession of 35 litres of arrack near a reserve forest,
in front of Kayampoovam rubber estate situated at
Paniyeli in Kodanad village, in contravention of the
provisions of the Abkari Act, and thereby committed an
offence punishable under Section 8(2) r/w 8(1) of the
Abkari Act.
3. Upon conclusion of the investigation, the
final report was laid before the Judicial First Class
Magistrate Court, Perumbavoor. Being satisfied that the
case is one exclusively triable by a court of Session,
the learned Magistrate, after complying with all legal
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formalities, committed the case to the Court of Session,
Ernakulam, under Section 209 of Cr.PC. The learned
Sessions Judge, having taken cognizance of the offence,
made over the case to the Additional Sessions
Court(Adhoc-I), Ernakulam, for trial and disposal. On
appearance of the accused before the trial court, the
learned Additional Sessions Judge, after hearing both
sides under Section 227 of Cr.P.C. and upon a perusal of
the records, framed a written charge against the accused
for an offence punishable under Section 8(2) r/w 8(1)
of the Abkari Act. When the charge was read over and
explained to the accused, he pleaded not guilty and
claimed to be tried.
4. The prosecution, in its bid to prove the
charge levelled against the accused, has altogether
examined six witnesses as PW1 to PW6, and marked Exts.P1
to P10. MO1 to MO3 were exhibited and identified. After
the completion of prosecution evidence, the accused was
questioned under Section 313 of Cr.P.C. during which he
denied all the incriminating materials brought out
against him in evidence. On finding that the accused
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could not be acquitted under Section 232 of Cr.P.C., he
was called upon to enter on his defence and adduce any
evidence he may have in support thereof. But no
evidence, whatsoever, was adduced from the side of the
accused.
5. After trial, the accused was found guilty of
the offence punishable under section 8(2) r/w 8(1) of
the Abkari Act, and he was convicted and sentenced to
undergo rigorous imprisonment for four years and to pay
a fine of Rs.1 Lakh. In default of payment of fine, the
accused was ordered to undergo rigorous imprisonment for
a further period of one year. Assailing the said
judgment of conviction and the order of sentence passed,
the present appeal has been preferred.
6. I heard learned counsel for the appellant and
the learned Public Prosecutor.
7. The learned counsel for the appellant submitted
that the accused is innocent of the allegations levelled
against him and that he was falsely implicated in this
case. According to the counsel, the accused had no
connection whatsoever with the contraband allegedly
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seized in this case, and he was implicated based on
surmises and conjectures. According to the counsel in
the case at hand, there is absolutely no material to
show that the sample of the arrack that was analyzed in
the laboratory is the very same sample drawn from the
contraband seized in this case. It is pointed out that,
in the Mahazar, the sample seal or specimen impression
of the seal allegedly used is nowhere affixed. In short,
the crux of the argument of the learned counsel for the
appellant is that there is patent flaw in the manner in
which the seizure and sampling procedures were carried
out in this case rendering no guarantee that the sample
produced before the court as well as reached for
examination in the chemical examination laboratory is
the same sample collected from the spot of detection.
Per contra, the learned Public Prosecutor would contend
that all the procedural formalities to avoid future
allegations of manipulation were scrupulously complied
with in this case and hence warrant no interference.
8. A perusal of the record reveals that, in order
to prove the charge levelled against the accused, the
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prosecution mainly relies on the evidence of the
detecting officer and the documentary evidence produced
in this case. This case was detected by the Inspector,
Excise Range, Perumbavoor. When the detecting officer
was examined as PW4, he narrated the entire sequence of
events relating to the detection of the contraband and
its seizure procedures. The seizure Mahazar prepared
contemporaneously with the detection of the contraband
was marked as Ext. P1.
9. The independent witnesses cited by the
prosecution to prove the alleged seizure were examined
as PW1 and PW2. However, during the examination, both
of them turned hostile to the prosecution by deposing
that they did not witness the incident in this case.
While considering the question whether the hostility
shown by the independent witnesses had any serious
impact in this case, it is to be borne in mind that it
is a common occurrence that the independent witnesses in
Abkari cases are turning hostile to the prosecution in
almost all cases for reasons only best known to them.
However, through a series of judicial pronouncements, it
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is well settled that the hostility shown by independent
witnesses in Abkari cases is of little significance if
the evidence of the official witnesses, including the
detecting officer, is found to be convincing and
reliable. Notably, in the case at hand, there is nothing
to indicate that the detecting officer bore any grudge
or animosity towards the accused that would motivate him
to falsely implicate the accused in a case of this
nature.
10. However, when a court is called upon to rely
solely on the evidence of the detecting officer, the
court must act with much care and circumspection. It is
incumbent upon the prosecution to satisfy the court that
all the procedures relating to the search, seizure, and
sampling of the contraband were carried out in a
foolproof manner, thereby ruling out any possibility of
tampering. Nevertheless, in the case at hand, a bare
perusal of Ext.P1 Mahazar reveals that neither the
sample seal nor the specimen impression of the seal
allegedly used by the detecting officer for sealing the
sample finds a place in the Mahazar. The absence of a
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sample seal or specimen impression of the seal in the
seizure Mahazar is certainly a circumstance to doubt the
identity of the sample drawn and the identity of the
sample that was got analyzed by the chemical examiner.
11. Likewise, in Ext.P1 seizure Mahazar, nothing is
mentioned about the procedures of sampling and sealing,
which were adopted. During the examination before the
court, PW4, the detecting officer, had not given any
evidence regarding the nature of the seal used for
sealing the samples as well as the residue of the
contraband allegedly seized in this case.
12. Moreover, in a case of this nature, it is the
bounden duty of the prosecution to show that the sample
drawn from the spot remained in safe custody until it
reached the hands of the chemical examiner for analysis.
Only when such a secure and uninterrupted chain of
custody is proved it can be held that the sample
analyzed is the very same one drawn from the contraband
allegedly seized from the accused. Keeping in mind the
above while reverting to the case at hand, it can be
seen that in Ext.P8 forwarding note, the name of the
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Excise Guard with whom the contraband was entrusted from
the court for producing before the chemical examiner's
laboratory does not find a place. When the space
designated in the forwarding note for recording the name
of the Excise Guard remains blank, it is incumbent on
the part of the prosecution to examine the Thondi clerk
as well as the Excise Guard as a witness to prove that
there was a tamper-proof despatch of the sample from the
court and an untampered transit of the same to the
laboratory. The same view has been taken by this Court
in Kumaran P. v. State of Kerala and Another (2016 (5)
KHC 632). However, in the case at hand, neither the
Thondi clerk nor the Excise Guard with whom the sample
was entrusted from the court was examined. The absence
of such examination enures to the benefit of the
accused. Therefore, in the facts and circumstances of
the present case, I have no hesitation in holding that
the prosecution failed to prove the link evidence
pertaining to the safe custody of the sample until it
reached the hands of the chemical examiner. The said
lapse is fatal to the prosecution, and hence, it is
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liable to be held that the prosecution failed to prove
the charge beyond a reasonable doubt.
13. Moreover, as revealed from the property list,
which is marked as Ext.P7, the sample allegedly drawn
from the arrack seized from the possession of the
accused was produced before the court only on
13.04.2009. Virtually, there is a delay of 5 days in
producing the sample before the court. However, no
explanation whatsoever has been offered from the side of
prosecution for the said delay. The unexplained delay in
producing the sample, as well as the residue of the
arrack before the court, is certainly fatal to the
prosecution. Particularly when there is no evidence to
show that the sample was in safe custody till the same
was produced before the court. Delay in producing the
sample before the court will leave room for allegations
of manipulation and tampering. Therefore, I have no
hesitation in holding that the accused is entitled to
get an order of acquittal on the said ground as well.
In the result, the appeal is allowed and the judgment
of conviction and the order of sentence passed against
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the appellant/accused for the offence punishable under
Section 8(2) r/w 8(1) of the Abkari Act is set aside and
he is acquitted. Fine amount, if any, has been deposited
by the appellant/accused, the same shall be refunded to
him in accordance with law.
Sd/-
JOBIN SEBASTIAN
JUDGE
rkr
