Kerala High Court
Ramachandran @ Raman vs State Of Kerala on 3 July, 2025
2025:KER:48400
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
RD
THURSDAY, THE 3 DAY OF JULY 2025 / 12TH ASHADHA, 1947
CRL.A NO. 278 OF 2014
CRIME NO.115/2009 OF AMBALAPPUZHA POLICE STATION, ALAPPUZHA
AGAINST THE JUDGMENT IN CP NO.17 OF 2009 OF JUDICIAL MAGISTRATE
OF FIRST CLASS, AMBALAPUZHA ARISING OUT OF THE JUDGMENT DATED
03.03.2014 IN SC NO.697 OF 2009 OF ADDITIONAL SESSIONS JUDGE-
II, ALAPPUZHA
APPELLANT/ACCUSED:
RAMACHANDRAN @ RAMAN
AGED 59 YEARS
S/O.GOVINDAN, ETTILCHIRA HOUSE,
KUNJUPADOM SOUTH P O, ALAPPUZHA
BY ADVS.
SRI.A.X.VARGHESE
SHRI.A.V.JOJO
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31
ADV.
SMT.M.S.HASNAMOL, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
01.07.2025, THE COURT ON 03.07.2025 DELIVERED THE FOLLOWING:
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2
JUDGMENT
The sole accused in S.C.No.697 of 2009 on the file of the
Additional Sessions Judge-II, Alappuzha, has preferred this
appeal challenging the judgment of conviction and order of
sentence passed against him in the said case for an offence
punishable under Section 8(2) r/w 8(1) of the Kerala Abkari Act.
2. The prosecution case in brief is that, on 26.02.2009, at
08:10 pm, the accused was found possessing 900 ml of coloured
liquor and engaged in the sale of the same by standing at a road
infront of a sawmill of one Ponnappan, in contravention of the
provisions contained under the Kerala Abkari Act. Hence, the
accused is alleged to have committed the offence punishable
under Section 8(2) r/w 8(1) of the Kerala Abkari Act.
3. After completion of the investigation, the final report
was laid before the Judicial First Class Magistrate Court,
Ambalapuzha. On being satisfied that this case was one
exclusively triable by a court of session, the learned Magistrate
after complying with all necessary formalities, committed the
case to the court of Session, Alappuzha, under Section 209
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Cr.PC. The learned Sessions Judge after taking cognizance, made
over the case for trial and disposal to the Additional Sessions
Judge II, Alappuzha. On appearance of the accused before the
trial court the learned Additional Sessions Judge after hearing
both sides under Section 227 Cr.PC. and perusing the records,
framed a written charge against the accused for an offence
punishable under Section 8(2) r/w 8(1) of the Kerala 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 P11. MO1 to MO3 series
were exhibited and identified. After the completion of the
prosecution evidence, the accused was questioned under Section
313 of Cr.PC. On questioning, the accused denied all the
incriminating materials brought out against him in evidence.
Thereafter, the learned Additional Sessions Judge heard both
sides under Section 232 Cr.PC and as it was not a case of no
evidence, the accused was not acquitted under Section 232
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Cr.PC. He was then directed to enter on his defence and adduce
any evidence he may have in support thereof. However, from the
side of the accused, no evidence whatsoever was produced.
After hearing both sides in detail, the trial court found the
accused guilty of an offence punishable under Section 8(2) r/w
8(1) of the Kerala Abkari Act and he was convicted and
sentenced to undergo rigorous imprisonment for six months and
to pay a fine of Rs.1 lakhs with a default clause to undergo
simple imprisonment for three months. Aggrieved by the finding
of guilt, judgment of conviction, and order of sentence, the
accused has come up with an appeal.
5. I heard the learned counsel appearing for the appellant
and the learned Public Prosecutor.
6. The learned counsel for the appellant submitted that the
accused is totally 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 summaries and conjectures. According to the
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counsel in the case at hand, there is absolutely no material to
show that the sample of the arack that got analysed 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 and that the sample was not produced
before the court in a foolproof manner. 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. According to the learned
Public Prosecutor, the sample was drawn at the spot of detection
itself, and was produced before the court on the very next day. It
is pointed out that, since there was no delay in producing the
sample before the court, there is no room for any manipulations
or tampering.
7. A perusal of the records reveals that, in order to prove
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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, Ambalappuzha, on
26.02.2009. When the detecting officer was examined as PW4,
he had narrated the entire sequence of events relating to the
detection of the contraband and its seizure procedures. The
seizure Mahazar prepared contemporaries with the detection of
the contraband was marked as P6.
8. The independent witnesses cited and examined by the
prosecution as PW1 & 2 to prove the alleged detection of the
contraband 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
witness had any serious bearing on the outcome of the case, it is
to be noted 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 best known to them. However,
through a series of judicial pronouncements, it is well settled
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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.
9. 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 foolproof manner, thereby ruling out any possibility
of tampering. Nevertheless, in the case at hand, a bare perusal
of Ext.P6 Mahazar reveals that neither the sample seal nor the
specimen impression of the seal allegedly used by the detecting
officer for sealing the sample is mentioned 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
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identity of the sample drawn and the identity of the sample got
analyzed by the chemical examiner.
10. Likewise, in Ext.P6 seizure Mahazar, nothing is
mentioned about the procedures of sampling and sealing which
was adopted. During the examination before the court, PW4, 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 arrack allegedly seized in this case. Therefore, I
have no hesitation to hold that the prosecution failed to prove
that the seizure and sampling were done in a foolproof manner.
In the absence of convincing evidence regarding proper sampling
and sealing, it could not be said that the sample collected at the
time of detection is the 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)
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r/w 8(1) of Kerala Abkari Act is 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
rkr
