Kerala High Court
Bindu vs State Of Kerala on 23 July, 2025
2025:KER:54651
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 23RD DAY OF JULY 2025 / 1ST SRAVANA, 1947
CRL.A NO. 802 OF 2014
AGAINST THE ORDER/JUDGMENT DATED IN CP NO.12 OF
2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS
,PARAPPANANGADI ARISING OUT OF THE ORDER/JUDGMENT DATED
07.08.2014 IN SC NO.172 OF 2011 OF ADDITIONAL SESSIONS
COURT - III, MANJERI
APPELLANT/ACCUSED:
BINDU, AGED 31 YEARS, W/O.MANI,
THADATHIL HOUSE, AYYAYA DESAM,
OZHUR AMSOM, TIRUR TALUK, MALAPPURAM DISTRICT.
BY ADVS.
SRI.P.G.SURESH
SRI.V.HARISH
SRI.RAJAN VISHNURAJ
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED THROUGH THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.
BY SMT. N.S. HASNA MOL, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 21.07.2025, THE COURT ON 23.07.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
The accused in S.C.No.172/2011, on the file of the
Additional Sessions Court-III, Manjeri, has preferred this
appeal challenging the judgment of conviction and order of
sentence passed against her for the offence punishable
under Section 55(g) of the Abkari Act.
2. The prosecution allegation in brief is that, on
05.01.2011, at about 5.30 p.m., the accused was found in
possession and transporting 10 litres of wash in a blue
bucket having a capacity of 10 litres, near the water tank at
Korumpara at Ozhur Amsom Ayyaya desom, for the purpose
of brewing arrack in contravention of the provisions of the
Abkari Act, and thereby committed an offence punishable
under Section 55(g) of the Abkari Act.
3. Upon conclusion of the investigation, the final
report was laid before the Judicial First Class Magistrate
Court-I, Parappanangadi. In response to the process issued,
the accused appeared before the learned Magistrate. Being
satisfied that the case against her is one exclusively triable
by a Court of Session, the learned Magistrate, after
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complying with all legal formalities, committed the case to
the Court of Session, Manjeri, 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-III, Manjeri, 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 a perusal of the records, framed a
written charge against her for an offence punishable under
Section 55(g) of the Abkari Act. When the charge was read
over and explained to the accused, she 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 P5. MO1
was exhibited and identified. After the completion of
prosecution evidence, the accused was questioned under
Section 313 of Cr.P.C., during which she denied all the
incriminating materials brought out against her in evidence.
On finding that the accused could not be acquitted under
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Section 232 of Cr.P.C., she was called upon to enter on her
defence and adduce any evidence she 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 the
offence punishable under Section 55(g) of the Abkari Act
and convicted and sentenced her 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 the 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 both sides.
7. The learned counsel for the appellant submitted
that the accused is innocent of the allegations levelled
against her and that she 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 she was implicated on the basis of surmises and
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conjectures. It is urged that there is absolutely no material
to show that the sample of the wash 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. 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.
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This case was detected by the Excise Inspector, Tirur Range.
When the detecting officer was examined as PW3, 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. P1.
9. Undisputedly, in a case of this nature, 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 got analyzed by the chemical
examiner.
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10. 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, PW3, 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. 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 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, the appeal is allowed, and the judgment
of conviction and the order of sentence passed against the
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appellant/accused for the offence punishable under Section
55(g) of Abkari Act is set aside, and she is acquitted. Fine
amount, if any, has been deposited by the
appellant/accused, the same shall be refunded to her in
accordance with law.
Sd/-
JOBIN SEBASTIAN
JUDGE
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