Kerala High Court
Satheesan, S/O.Madhavan vs State Of Kerala on 21 July, 2025
2025:KER:50190
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
CRL.A NO. 1132 OF 2011
AGAINST THE ORDER/JUDGMENT DATED 10.06.2011 IN SC
NO.44 OF 2011 OF ADDITIONAL DISTRICT COURT (ADHOC)-II,
KOTTAYAM
APPELLANT/ACCUSED:
SATHEESAN,
S/O.MADHAVAN,
KUNNEL VEEDU, THOTTAKKADU KARA,
THOTTAKKADU VILLAGE, CHANGANASSERY, TALUK.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA-682031.
BY ADV
SMT.N.S.HASNA MOL, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
18.07.2025, THE COURT ON 21.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
The sole accused in S.C.No.44/2011 on the file of the
Additional Sessions Court (Adhoc) -II, Kottayam, has preferred
this appeal challenging the judgment of conviction and order of
sentence passed against him for the offence punishable under
Section 58 of the Abkari Act.
2. The prosecution allegation in brief is that, on
05.01.2009, at 7.30 p.m., the accused was found in possession of
1.300 litres of illicit liquor in a bottle having 1.5 litre capacity for
the purpose of sale in contravention of the provisions of the
Abkari Act, and thereby committed an offence punishable under
Section 58 of the Abkari Act.
3. Upon conclusion of the investigation, the final report
was laid before the Judicial First Class Magistrate Court-I,
Changanacherry. 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, Kottayam, under Section 209 of Cr.PC. The
learned Sessions Judge, having taken cognizance of the offence,
made over the case to the Additional District and Sessions Court
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(Adhoc) -II, Kottayam, 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 58 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 three witnesses as
PW1 to PW3 and marked Exts.P1 to P8. MO1 was exhibited and
identified. 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.
On the side of the accused, one witness was examined as DW1,
and Ext.D1 was marked.
5. After trial, the accused was found guilty of the offence
punishable under section 58 of the Abkari Act, and he was
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convicted and sentenced to undergo rigorous 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 rigorous
imprisonment for a further period of six 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
liquor 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 liquor that 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 was
further submitted that the copy of the forwarding note, which is a
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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. 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, Changanassery. 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 prepared contemporaneous with
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the detection of the contraband was marked as Ext. P3.
9. The independent witness cited by the prosecution to
prove the alleged seizure was examined as PW2. However, during
the examination, PW2 turned hostile to the prosecution by
deposing that he did not witness the incident in this case. While
considering the question whether the hostility shown by the
independent witness 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
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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.P3 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 got
analyzed by the chemical examiner.
11. Likewise, in Ext.P3 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. At this juncture, it is pertinent to note that the copy of
the forwarding note is seen not marked in evidence in this case.
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The non-production of the forwarding note, a crucial document, 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 the copy of the forwarding note, it is
impossible to enter into a conclusion that the sample collected
from the spot is the very same sample that was ultimately
examined in the laboratory.
13. Therefore, I have no hesitation in holding that the
prosecution failed to prove that the procedures of seizure and
sampling in this case were carried out in a foolproof manner. 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.
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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 58 of
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
ANS
