Kerala High Court
P.K.Ramankutty vs State Of Kerala on 25 July, 2025
2025:KER:54808
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 25TH DAY OF JULY 2025 / 3RD SRAVANA, 1947
CRL.A NO. 2071 OF 2010
AGAINST THE ORDER/JUDGMENT DATED 20.09.2010 IN SC NO.412
OF 2005 OF ADDITIONAL DISTRICT COURT (ADHOC), KALPETTA
APPELLANT/ACCUSED:
P.K.RAMANKUTTY
YEARS, PUTHUKAVU PADDIYIL, MUPPAINAD,
RIPPON, WAYANAD.
BY ADV SRI.A.C.DEVY
RESPONDENT/RESPONDENT:
STATE OF KERALA
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, KOCHI-31.
BY ADV.
SRI.ALEX M.THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
23.07.2025, THE COURT ON 25.07.2025 DELIVERED THE FOLLOWING:
CRL.A NO. 2071 OF 2010 2 2025:KER:54808
JUDGMENT
The sole accused in S.C.No.412/2005, on the file of
the Additional Sessions Court (ADHOC)-I, Kalpetta, 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
21.11.2004, near the tea shed of the Harisons Malayalam Tea
Estate, the accused was found in possession of 3 liters of arrack
in a plastic jerry can having a capacity of 5 litres, 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 Chief Judicial Magistrate Court, Kalpetta.
Being satisfied that the case is one exclusively triable by a Court
of Session, the learned Chief Judicial Magistrate, after complying
with all legal formalities, committed the case to the Court of
Session, Kalpetta, under Section 209 of Cr.PC. The learned
Sessions Judge, having taken cognizance of the offence, made
CRL.A NO. 2071 OF 2010 3 2025:KER:54808
over the case to the Additional Sessions Court (ADHOC)-I,
Kalpetta, 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 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 six witnesses as
PW1 to PW6, and marked Exts.P1 to P7. MO1 was 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 evidence he 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
CRL.A NO. 2071 OF 2010 4 2025:KER:54808
punishable under section 8(2) r/w 8(1) of the Abkari Act, and he
was convicted and sentenced to undergo simple imprisonment
for two years 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 one year. 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
based on surmises and conjectures. It is urged that there is
absolutely no material to show that the sample of the arrack
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
CRL.A NO. 2071 OF 2010 5 2025:KER:54808
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. It is
further submitted that the Preventive Officer who detected the
case was not a competent Abkari officer to register a case under
Abkari Act and hence the entire proceedings in this case,
including taking of cognizance and the trial, were vitiated and
the accused is entitled to be acquitted. 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 warrant 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 Preventive Officer, Excise Range office, Kalpetta.
CRL.A NO. 2071 OF 2010 6 2025:KER:54808
When the detecting officer was examined as PW1, he narrated
the entire sequence of events relating to the detection of the
contraband and its seizure procedures. The seizure Mahazar
prepared contemporaneously with the detection of the
contraband was marked as Ext.P2.
9. The independent witnesses cited by the prosecution to
prove the alleged seizure were examined as PW4 and PW5.
However, during the examination before the court, both of them
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
CRL.A NO. 2071 OF 2010 7 2025:KER:54808
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.P2 Mahazar reveals that neither the sample seal nor the
specimen impression of the seal allegedly used by the detecting
officer for sealing the sample finds 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.P2 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,
CRL.A NO. 2071 OF 2010 8 2025:KER:54808
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. Admittedly, this case was detected by a Preventive
Officer attached to Kalpetta Excise Range. As already stated, he
was examined as PW1. Apart from detecting the case, it was he
who registered Ext.P3, the crime and occurrence report.
Moreover, he prepared Ext.P4 property list and Ext.P5 forwarding
note. I do agree that a Preventive Officer was conferred with the
power to detect an Abkari case as per Government notification
234/1967. As per the said notification, a Preventive Officer can
not only detect an offence but also can arrest the accused and
seize the properties. However, after detection and seizure, he is
duty-bound to report the facts to the Range Officer and produce
the properties and the accused before the Excise Inspector. Only
the Excise Inspector can register and investigate crimes under
the Abkari Act. The power to register crimes or to investigate, or
even to submit a final report, is not given to Preventive Officers
under the said notification. Therefore, the action of the
Preventive Officer in registering the case and conducting a part
CRL.A NO. 2071 OF 2010 9 2025:KER:54808
of the investigation in this case is without jurisdiction.
Consequently, the cognizance taken and trial conducted in this
case are also vitiated.
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)
of the Abkari Act is0000 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
