Kerala High Court
Sadanandan @ Anandan vs State Of Kerala on 15 July, 2025
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CRL.A NO. 44 OF 2013
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 15TH DAY OF JULY 2025 / 24TH ASHADHA, 1947
CRL.A NO. 44 OF 2013
AGAINST THE JUDGMENT DATED 26.11.2012 IN SC NO.238 OF 2009
OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC), KOLLAM
APPELLANT/ACCUSED:
SADANANDAN @ ANANDAN
S/O. DAIVATHAN, CHARUVILAPUTHEN VEEDU, KOLLUPARA
MEEYANNOOR, PALLIMON, KOLLAM.
BY ADV SHRI.SYAM J SAM
RESPONDENT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY ADV SMT.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.238/2009, on the file of
Additional District and Sessions Court(Adhoc)I, Kollam
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
22.12.2007, at 07.55 p.m., the accused was found in
possession of 4 litres of arrack in a can having a
capacity of 5 litres and a glass tumbler for the purpose
of sale, in contravention of the provisions of the Abkari
Act.
3.Upon conclusion of the investigation, the final
report was laid before the Judicial First Class
Magistrate Court, Paravoor. Being satisfied that the case
is one exclusively triable by a Court of Session, the
learned Magistrate, after complying with all legal
formalities, committed the case to the Court of Session,
Kollam, under Section 209 of Cr.PC. The learned Sessions
Judge, having taken cognizance of the offence, made over
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the case to the Additional Sessions Court(Adhoc)I,
Kollam, 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 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
four witnesses as PW1 to PW4 and marked Exts.P1 to P6.
After the completion of prosecution evidence, the
accused was questioned under Section 313 Cr.P.C., during
which he denied all the incriminating materials brought
out against him in evidence. On finding that the accused
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
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the offence punishable under section 8(2) r/w 8(1) of
the Abkari Act, and he was convicted and sentenced to
undergo simple imprisonment for a period of one year and
to pay a fine of Rs.1,00,000/-. In default of payment of
fine, the accused was ordered to undergo simple
imprisonment for a further period of three months.
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 seized in this case, and he
was implicated on the basis of 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 got analyzed in the
laboratory is the very same sample drawn from the
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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. It was
further submitted that the copy of the forwarding note,
which is a crucial document in an Abkari case, is not
marked as evidence in this case, and the same is fatal
to the prosecution. 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.
8. A perusal of the record reveals that, in
order to prove the charge levelled against the accused,
the prosecution mainly relies on the evidence of the
detecting officer and the documentary evidence produced
in this case. This case was detected by the
Sub-Inspector of Police, Chathannoor Police Station.
When the detecting officer was examined as PW4, he had
narrated the entire sequence of events relating to the
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detection of the contraband and its seizure procedures.
The seizure Mahazar prepared contemporaneous with the
detection of the contraband was marked as Ext. P1.
9. 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 does find a place in the Mahazar.
The absence of a 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 analyzed by the
chemical examiner.
10. Likewise, in Ext.P1 seizure Mahazar, nothing
is mentioned about the procedures of sampling and
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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.
11. At this juncture, it is pertinent to note that
the copy of the forwarding note is not marked in
evidence in this case. The non-production of the
forwarding note is undoubtedly fatal to the
prosecution. Only when the same is produced, the court
can verify whether it contains the specimen impression
of the seal or the sample seal that was meant to help
the chemical examiner to compare with the seal found on
the sample. In the absence of a copy of the forwarding
note, it is impossible to conclude that the sample
collected from the spot is the very same sample that
was ultimately examined in the laboratory.
12. A perusal of the record further reveals that
the property list as per which the thondi articles and
the sample were produced before the court, is not
marked in evidence in this case. It is highly dubious
why such a crucial document is not marked in evidence.
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Only when the property list is marked in evidence, this
court can verify the date of production of the sample,
details of the items produced, etc. Therefore, I have
no hesitation in holding that the non-production and
marking of the property list in evidence is also fatal
to the prosecution. The prosecution failed to prove
that the procedures of seizure and sampling in this
case were carried out in a foolproof manner, and the
same alone is a ground for acquittal.
13. In the absence of convincing evidence
regarding proper sampling and sealing, it cannot be
safely concluded that the sample collected at the time
of detection is the very same sample that was later
examined in the chemical examiner's laboratory. In the
above circumstances, it is found that the prosecution
has not succeeded in proving the case against the
accused beyond a reasonable doubt.
In the result, the appeal is allowed and the
judgment of conviction and the order of sentence passed
against 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
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deposited by the appellant/accused, the same shall be
refunded to him in accordance with law.
Sd/-
JOBIN SEBASTIAN
JUDGE
rkr
