Kerala High Court
Shijumon @ Kuttan vs State Of Kerala on 21 July, 2025
2025:KER:53907
CRL.A NO. 275 OF 2010
1
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. 275 OF 2010
AGAINST THE JUDGMENT DATED 11.01.2010 IN S.C NO.578 OF
2007 OF ADDITIONAL SESSIONS COURT (FAST TRACK-II),
ALAPPUZHA
APPELLANT/ACCUSED:
SHIJUMON @ KUTTAN @ SHIJU,
S/O.ANANDAN,
ANANDABHAVANAM, NALLENIKKALMURI,
ARATTUPUZHA VILLAGE, KARTHIKAPPILLY.
BY ADVS.
SRI.R.BINDU (SASTHAMANGALAM)
SHRI.M.SUNILKUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SRI.ALEX.M.THOMBRA- SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING
ON 18.07.2025, THE COURT ON 21.07.2025 DELIVERED THE
FOLLOWING:
2025:KER:53907
CRL.A NO. 275 OF 2010
2
JUDGMENT
The sole accused in S.C.No.578/2007, on the file
of the Additional Sessions Court(Fast Track-II),
Alappuzha, 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
03.06.2004, at 11.30 a.m., the accused was found in
possession of 20 litres of arrack kept in two cans of 10
litre capacity for the purpose of sale 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-I, Haripad. 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,
Alappuzha, under Section 209 of Cr.PC. The learned
2025:KER:53907
CRL.A NO. 275 OF 2010
Sessions Judge, having taken cognizance of the offence,
made over the case to the Additional Sessions Court(Fast
Track-II), Alappuzha, 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
five witnesses as PW1 to PW5 and marked Exts.P1 to P6.
MO1 series and MO2 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
could not be acquitted under Section 232 of Cr.P.C., he
was called upon to enter on his defence and adduce any
2025:KER:53907
CRL.A NO. 275 OF 2010
evidence he may have in support thereof. From the side
of the accused, one witness was examined as DW1.
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 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 Senior 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,
2025:KER:53907
CRL.A NO. 275 OF 2010
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
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. Per contra, the
learned Senior 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.
2025:KER:53907
CRL.A NO. 275 OF 2010
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
Circle-Inspector attached to the Excise Enforcement and
Anti-Narcotic Special Squad. 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 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
PW3. However, during the examination, PW3 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
2025:KER:53907
CRL.A NO. 275 OF 2010
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 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
2025:KER:53907
CRL.A NO. 275 OF 2010
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, which is a crucial
document in an Abkari case, is seen 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
2025:KER:53907
CRL.A NO. 275 OF 2010
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.
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.
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
2025:KER:53907
CRL.A NO. 275 OF 2010
deposited by the appellant/accused, the same shall be
refunded to him in accordance with law.
Sd/-
JOBIN SEBASTIAN
JUDGE
rkr
