Kerala High Court
Shylaja vs State Of Kerala on 18 July, 2025
2025:KER:53267
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 18TH DAY OF JULY 2025 / 27TH ASHADHA, 1947
CRL.A NO. 316 OF 2014
CRIME NO.14/2000 OF THRITHALA EXCISE RANGE, PALAKKAD
DISTRICT, PALAKKAD
AGAINST THE ORDER/JUDGMENT DATED IN CP NO.61 OF 2010
OF JUDICIAL MAGISTRATE OF FIRST CLASS, PATTAMBI ARISING OUT
OF THE ORDER/JUDGMENT DATED 20.03.2014 IN SC NO.850 OF 2010
OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, PALAKKAD
APPELLANTS/ACCUSED:
1 SHYLAJA
AGED 35 YEARS
W/O.SURESH BABU, THADATHIL VEEDU, PATTISSERI DESOM,
CHALISSERY VILLAGE, OTTAPPALAM TALUK.
2 SURESH BABU
AGED 38 YEARS
S/O.VELAYUDHAN, THADATHIL VEEDU, PATTISSERI DESOM,
CHALISSERY VILLAGE, OTTAPPALAM TALUK.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. SMT.N.S.HASNA MOL, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
17.07.2025, THE COURT ON 18.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
The accused Nos.1 and 2 in S.C.No.850/2010, on the file of
the Additional District and Sessions Court, Palakkad has preferred
this appeal challenging the judgment of conviction and order of
sentence passed against them for the offence punishable under
Sections 55(g) and 8(2) r/w 8(1) of the Abkari Act.
2. The prosecution allegation in brief is that, on
17.06.2000, at 11.15 a.m., the accused were found in possession
of 5 litres of arrack and 400 liters of wash and other utensils for
brewing arrack inside their house bearing No.10/96, in
contravention of the provisions of the Abkari Act, and thereby
committed an offences punishable under Sections 55(g) and 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, Pattambi.
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, Palakkad,
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-IV, Palakkad, for trial and disposal. On
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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 offences punishable under
Sections 55(g) and 8(2) r/w 8(1) of the Abkari Act. When the
charge was read over and explained to the accused, both of them
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 eight witnesses as
PW1 to PW8 and marked Exts.P1 to P15. MO1 to MO8 were
exhibited and identified. After the completion of prosecution
evidence, the accused were questioned under Section 313 Cr.P.C.,
during which they denied all the incriminating materials brought
out against them in evidence. On finding that the accused could
not be acquitted under Section 232 of Cr.P.C., they were called
upon to enter on their defence and adduce any evidence they may
have in support thereof. But no evidence, whatsoever, was
adduced from the side of the accused.
5. After trial, both the accused was found guilty of the
offences punishable under Sections 55(g) and 8(2) r/w 8(1) of the
Abkari Act, and they were convicted and sentenced to undergo
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rigorous imprisonment for a period of three years for the above
offences and to pay a fine of Rs.1,00,000/- each for each for the
offences. In default of payment of fine, the accused were ordered
to undergo rigorous imprisonment for a further period of six
months each. 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 appellants and the
learned Public Prosecutor.
7. The learned counsel for the appellants submitted that
the accused are innocent of the allegations levelled against them
and that they were falsely implicated in this case. According to
the counsel, the accused had no connection whatsoever with the
contraband allegedly seized in this case, and they were 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 and wash that was got
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. It is further submitted that the
prosecution failed to prove that the contraband was recovered
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from the conscious and exclusive possession of the accused. In
short, the crux of the argument of the learned counsel for the
appellants is that there are patent flaws 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 very 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 warrants no interference.
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
Excise Inspector of Excise Enforcement and Anti-Narcotic Special
Squad, Palakkad. When the detecting officer was examined as
PW1, he had narrated the entire sequence of events relating to
the detection of the contraband and its seizure procedures. The
seizure Mahazar allegedly prepared contemporaneous with the
detection of the contraband was marked as Ext.P1.
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9. The independent witnesses cited by the prosecution to
prove the alleged seizure were examined as PW4, PW5, and PW6.
However, during the examination, they 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
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
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the search, seizure, and sampling of the contraband were carried
out in 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
produced before the court and ultimately 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, PW1, 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 the safe custody until it reached the hands of
the chemical examiner for analysis. Only when such a secure and
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uninterrupted chain of custody is proved it can be held that the
sample analysed 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.P7
forwarding note, the name of the 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 witnesess to prove that there was a tamper-proof
dispatch 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
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reached the hands of the chemical examiner. The said lapse is
fatal to the prosecution, and hence, it is liable to be held that the
prosecution failed to prove the charge beyond a reasonable doubt.
In the result, the appeal is allowed and the judgment of
conviction and the order of sentence passed against the
appellants/accused for the offences punishable under Sections
55(g) and 8(2) r/w 8(1) of the Abkari Act are set aside and they
are acquitted. Fine amount, if any, has been deposited by the
appellants/accused, the same shall be refunded to them in
accordance with law.
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
