Kerala High Court
Balagopalan @ Kuttan vs State Of Kerala on 21 July, 2025
2025:KER:53902
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. 384 OF 2014
AGAINST THE ORDER/JUDGMENT DATED 11.03.2014 IN SC
NO.287 OF 2012 OF III ADDITIONAL DISTRICT COURT, PALAKKAD
APPELLANT/2ND ACCUSED:
SAKEER HUSSAIN
AGED 40 YEARS
S/O.FAROOK ISMAIL, THOTTUPALAM HOUSE, MARUTHAMKAD,
ALATHUR, PALAKKAD DISTRICT.
BY ADV SRI.RAJIT
RESPONDENT/STATE:
STATE OF KERALA
REP. BY THE 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
18.07.2025, ALONG WITH CRL.A.386/2014, THE COURT ON
21.07.2025 DELIVERED THE FOLLOWING:
CRL.A NOS.384 & 386 of 2014
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2025:KER:53902
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. 386 OF 2014
CRIME NO.491/2009 OF TOWN NORTH POLICE STATION, PALAKKAD
AGAINST THE ORDER/JUDGMENT DATED 11.03.2014 IN SC
NO.287 OF 2012 OF III ADDITIONAL DISTRICT COURT, PALAKKAD
ARISING OUT OF THE ORDER/JUDGMENT DATED IN CP NO.24 OF 2011
OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II, PALAKKAD
APPELLANT/1ST ACCUSED:
BALAGOPALAN @ KUTTAN
S/O.PACHU, PALLATHU VEEDU, POTTASSERY, KANHIRAM,
PALAKKAD DIST
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP 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
18.07.2025, ALONG WITH CRL.A.384/2014, THE COURT ON
21.07.2025 DELIVERED THE FOLLOWING:
CRL.A NOS.384 & 386 of 2014
:3:
2025:KER:53902
COMMON JUDGMENT
The accused Nos. 1 and 2 in S.C.No.287/2012, on the file
of the Additional Sessions Court-III, Palakkad, have preferred
these appeals challenging the judgment of conviction and order of
sentence passed against them for the offence punishable under
Section 55(a) of the Abkari Act.
2. The prosecution allegation in brief is that, on
19.10.2009, at 9.00 p.m., near Manali Junction at Palakkad, the
accused Nos. 1 and 2 were found in possession and transporting
875 litres of spirit in a Qualis Van bearing registration
No.TN-10-H-9183 for the purpose of sale in contravention of the
provisions of the Abkari Act, and thereby committed an offence
punishable under Section 55(a) of the Abkari Act.
3. Upon conclusion of the investigation, the final report
was laid before the Judicial First Class Magistrate Court-II,
Palakkad, against five accused. On issuance of process, accused
Nos. 1, 2, and 5 appeared before the learned Magistrate. Being
satisfied that the case against them 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 case against accused
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Nos. 3 and 4, the absconding accused was split up and refiled as
C.P.No.6/2012. The learned Sessions Judge, having taken
cognizance of the offence, made over the case to the Additional
Sessions Court-III, Palakkad, for trial and disposal. On
appearance of the accused No.1, 2, and 5 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 them for an offence punishable
under Section 55(a) of the Abkari Act. When the charge was read
over and explained to the accused, all 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 ten witnesses as
PW1 to PW10 and marked Exts.P1 to P21. MO1 to MO4 series
were exhibited and identified. After the completion of prosecution
evidence, the accused were questioned under Section 313 of
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,
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was adduced from the side of the accused.
5. After trial, the 5th accused was found not guilty and he
was acquitted. However, the 1st and 2nd accused were found
guilty of the offence punishable under section 55(a) of the Abkari
Act, and they were convicted and sentenced to undergo rigorous
imprisonment for a period of three years and to pay a fine of
Rs.1,00,000/- each. In default of payment of fine, the accused
were ordered to undergo simple imprisonment for a further period
of three months each. Assailing the said judgment of conviction
and the order of sentence passed, the present appeals have 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. It is urged that there is
absolutely no material to show that the sample of the spirit that
got analyzed in the laboratory is the very same sample drawn
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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 appellants 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
Sub-Inspector of Police, Town North Police Station, Palakkad.
When the detecting officer was examined as PW7, he had
narrated the entire sequence of events relating to the detection of
the contraband and its seizure procedures. The seizure Mahazar
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prepared contemporaneous 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 to PW4.
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
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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 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 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, PW7, 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. 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
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the absence of the specimen impression of the seal or sample seal
in the seizure mahazar, it cannot be safely concluded that the
sample collected at the time of detection is the very same sample
that was produced before the court and 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, both the appeals are allowed, and the
judgment of conviction and the order of sentence passed against
the appellants/accused for the offence punishable under Section
55(a) of Abkari Act is 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
