Kerala High Court
Kochunni And Another vs State Of Kerala on 28 July, 2025
CRL.A NO. 292 of 2010
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 28TH DAY OF JULY 2025 / 6TH SRAVANA, 1947
CRL.A NO. 292 OF 2010
AGAINST THE ORDER/JUDGMENT DATED 12.01.2010 IN S.C.
NO.2062 OF 2002 OF ADDITIONAL SESSIONS COURT (ABKARI CASES),
KOTTARAKKARA
APPELLANTS/ACCUSED -A1 & 2:
1 KOCHUNNI @ UNNI,S/O AYYAPPAN,
BENGLOWIL VEEDU, DHARMAPURI WARD,
VILAKKUDI VILLAGE, KOLLAM DISTRICT.
2 ASOKAN, S/O. GOPI, OOLIKKL VEEDU,
DHARMAPURI WARD, VILAKKUDI VILLAGE,
KOLLAM DISTRICT.
BY ADV SRI.K.V.ANIL KUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
25.07.2025, THE COURT ON 28.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
The accused Nos. 1 and 2 in S.C.No.2062/2002 on
the file of the Additional Sessions Court (Abkari cases),
Kottarakkara, have preferred this appeal challenging the
judgment of conviction and order of sentence passed
against them for the offence punishable under Section
55(a), (b) and (g) of the Abkari Act.
2. The prosecution allegation in brief is that, on
28.06.2001, at 3:30 a.m., the accused were found engaged
in brewing of arrack inside the house of 1st accused
situated at Dharmapuri in Vilakkudi Village and were
found in possession of arrack as well as wash and other
utensils for brewing arrack in contravention of the
provisions of the Abkari Act, and thereby committed an
offence punishable under Section 55(a), (i), (b) and (g)
of the Abkari Act.
3. Upon conclusion of the investigation, the final
report was laid before the Judicial First Class
Magistrate Court-III, Punalur. Being satisfied that the
case is one exclusively triable by a Court of Session,
the learned Magistrate, after complying with all legal
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formalities, committed the case to the Court of Session,
Kollam, 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 (Abkari cases),
Kottarakkara, 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 offences
punishable under Sections 55(a),(i),(b) and (g) and
Section 8(2) r/w 8(1) of the Abkari Act. When the charge
was read over and explained to the accused, both accused
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 four
witnesses as PW1 to PW4 and marked Exts.P1 to P7. MO1 to
MO3 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
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acquitted under Section 232 of Cr.P.C., both accused were
called upon to enter on their defence and adduce any
evidence they may have in support thereof.
5. After trial, the accused were found guilty of
the offence punishable under section 55(a), (b) and (g)
of the Abkari Act, and they were convicted and sentenced
to undergo simple imprisonment for a period of one year
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 appeal has 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 liquor allegedly seized in this case, and they were
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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
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 in 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 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 allegations of
manipulation were scrupulously complied with in this case
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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, Kunnicodu Police Station. 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. 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
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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 official witnesses, 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.P1 Mahazar reveals that neither the sample
seal nor the specimen impression of the seal allegedly
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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, 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.
12. At this juncture, it is pertinent to note that
the copy of the forwarding note was not marked in
evidence in this case. The non-production of the
forwarding note, which is a crucial document in an Abkari
case, 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
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to compare with the seal found on the sample. In the
absence of the 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 appellants/accused for the offence punishable
under Section 55(a), (b) and (g) of Abkari Act is set
aside and accused Nos.1 and 2 are acquitted. Fine amount,
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if any, has been deposited by the appellants/accused, the
same shall be refunded to them in accordance with law.
Sd/-
JOBIN SEBASTIAN
JUDGE
rkr
