Kerala High Court
Shajimon K.J vs State Of Kerala on 3 July, 2025
2025:KER:48411
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 3RD DAY OF JULY 2025 / 12TH ASHADHA, 1947
CRL.A NO. 185 OF 2014
AGAINST THE ORDER/JUDGMENT DATED 29.01.2014 IN
SC.NO.229 OF 2013 OF ADDITIONAL SESSIONS COURT- IV, KOTTAYAM
APPELLANT/ACCUSED:
SHAJIMON K.J.
AGED 40 YEARS
S/O.JOHNSON, KANJIRAKKATTU HOUSE,
MEVADA KARA, MEENACHIL VILLAGE,
MEENACHIL TALUK, KOTTYAM.
ADV.SANIYA C.V., STATE BRIEF
RESPONDENT/RESPONDENT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
ADV. ALEX M.THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
03.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
The sole accused in S.C.No.229/2013, on the file of
Additional Sessions Court-IV, Kottayam 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(1) r/w 8(2) of the Kerala Abkari Act.
2. The prosecution allegation in brief is that, on
10.03.2012, at 11.30 p.m., the accused possessed 10 litres of
arrack in a white plastic can and transported it in an autorickshaw
bearing Registration No.KL37/6213 for the purpose of sale in
violation 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. On completion of the investigation, the final report
was submitted before the Judicial First Class Magistrate Court-I,
Kanjirappally. On being satisfied that the said case is one
exclusively triable by a court of session, the learned Magistrate,
after complying with all legal formalities, committed the case to
the Sessions Division, Kottayam, under Section 209 of Cr.PC. The
learned Session Judge, after taking cognizance made over the
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case to the Additional Sessions Court-IV, Kottayam, for trial and
disposal. On appearance of the accused before the trial court, the
learned Session Judge, after hearing both sides under Section 227
of Cr.P.C. and perusing the records, framed a written charge
against the accused for an offense 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 is bid to prove the charge levelled
against the accused as altogether examined six witnesses as PW1
to PW6, and marked Exts.P1 to P13 and MO-1 and MO-2.
5. After the completion of prosecution evidence, when the
accused was questioned under Section 313 Cr.P.C., 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. From the
side of the accused, one witness was examined as DW1.
6. 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
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one year and to pay a fine of Rs. 1 Lakh. In default of payment of
fine, the accused was ordered to undergo simple imprisonment for
a further period of three months. Aggrieved by the said judgment
of conviction and order of sentence passed, the present appeal
has been preferred.
7. I heard learned counsel for the appellant and the
learned Public Prosecutor.
8. The learned counsel for the appellant would submit that
the case registered against the accused is a foisted one.
According to the counsel, the detecting officer failed to follow the
procedures relating to the sampling and sealing of the seized
contraband scrupulously, leaving room for tampering. The counsel
further urged that there is no sufficient link evidence to show that
the sample drawn from the contraband at the time of detection is
the one examined in the chemical examiner's laboratory.
According to counsel, there is overwriting in the date of covering
letter by which the forwarding note, along with the sample, was
sent to the chemical examiners laboratory and that manipulation
was committed with the sole intention to coverup the delay
occurred between the date of entrustment of the sample by the
court for production before the chemical examiners laboratory and
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the actual date of receipt of the sample at the chemical examiners
laboratory. According to the counsel, the delayed production of
the sample before the laboratory after it was entrusted to an
Excise Guard is fatal to the prosecution as it creates a real
possibility of tampering. The learned counsel further submitted
that it is unsafe to base a conviction solely on the testimony of
the investigating officer, especially when the independent witness
to the recovery has turned hostile to the prosecution, and even
denied his signature in the Seizure Mahazer.
9. In response, the learned public prosecutor submitted
that, contemporaneous with the detection of the contraband, the
sample was drawn and sealed at the spot itself and produced
before the Magistrate on the very next day of the detection.
According to him, all the procedures relating to the sampling and
sealing were duly and scrupulously followed in this case, ruling
out any possibility of tampering. The learned Public Prosecutor
further urged that the hostility shown by an independent witness
to a seizure Mahazar in an Abkari case is of no serious
consequence, particularly when the evidence of the investigating
officer is convincing, and that the procedural formalities regarding
search and seizure were scrupulously complied with.
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10. A perusal of the records 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 of Excise, Ponkunnam, on
10.03.2012. When the detecting officer was examined as PW2, he
had portrayed the entire sequence of events related to the
detection of the contraband as well as the seizure procedures,
including sealing and sampling. The seizure Mahazer prepared by
PW2 from the spot of detection was marked as Ext.P1.
11. The independent witnesses cited by the prosecution to
prove the alleged detection of the contraband were examined as
PW1. However, he turned hostile to the prosecution by deposing
that he did not witness the incident in this case. He even denied
the signature found in the seizure Mahazar. While considering the
question whether the hostility shown by PW1 had any 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 often
turn hostile to the prosecution for reasons best known to them.
However, through a series of judicial pronouncements, it is well
settled that the hostility shown by independent witnesses in
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Abkari cases is of little significance provided 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 has any axe to grind
against the accused to falsely implicate the accused in a case of
this nature. However, when a court is called upon to rely on the
solitary evidence of the detecting officer, the court must act with
much care and circumspection. Moreover, 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 done in
a foolproof manner, ruling out the possibility of tampering.
12. One of the main contentions taken by the learned
counsel for the appellant is that there is an overwriting in the date
of covering letter by which the forwarding note, along with
sample, was sent to the chemical examiners laboratory and the
said manipulation was committed with the sole intention of
covering the delay occurred between the date of entrustment of
the sample by the court for producing the same before the
chemical examiner's laboratory and its actual date of receipt in
the said laboratory. According to the counsel, the delayed
production of the sample before the laboratory, after it was
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entrusted to an excise guard, is fatal to the prosecution as it gives
rise to a possibility of tampering.
13. In order to address the above contention of the
appellant, it is necessary to verify the chemical examiner's report
which is marked as Ext.P12. in Ext.P12 it is mentioned that the
sample collected in this case was received at the laboratory on
22.03.2012 through an excise guard named Anil Velayudhan. In
the report, it is further mentioned that the seals on the sample
bottle were intact and found to tally with the sample seal
provided. Likewise, in the forwarding note, which is marked as
Ext.P8, the specimen impression of the seal as well as the sample
seal find a place. Therefore, I have no hesitation in holding that
the chemical examiner got sufficient opportunity to compare the
seal found on the sample bottle with the sample seal provided in
the forwarding note.
14. However, the covering letter by which the forwarding
note and the sample were transmitted to the chemical examiners'
laboratory and which forms part of Ext.P8, shows that the same is
originally dated 14.03.2012. However, an overwriting is clearly
visible in the portion where the date is mentioned, and it has
been altered to 21.03.2012. In the said letter issued by the court,
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it is mentioned that the sample in this case was entrusted with
Anil Velayudhan, an Excise guard, for production before the
chemical examiners' laboratory. The overwriting on the date
contained in the covering letter raises serious suspicion. It is
demonstrably clear that the date originally written was
14.03.2012. As already stated, Ext. P12 chemical examination
report reveals that the sample reached the hands of the chemical
examiner only on 22.03.2012. Therefore, it is only reasonable to
infer that the overwriting on the date of the covering letter may
have been done with the intention of covering up the delay in the
production of the sample before the chemical examiner's
laboratory. In the case at hand, there is absolutely no evidence
to show that the sample was in the safe custody from the date it
was entrusted to the above-named excise guard until it was
produced before the chemical examiners' laboratory. For the sake
of argument if at all it is assumed that the overwritting on the
date of covering letter was not made with any malafade intention,
it was the duty of the prosecution to examine the Thondi Clerk
and to produce the relevant Thondi register and other documents
showing the despatch of the sample with the excise guard.
However, no attempt is seen to be made from the side of the
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prosecution in that regard. In the above circumstances, it is
found that the prosecution failed to show that the sample
examined by the chemical examiner is the very same sample
drawn from the contraband allegedly seized in this case.
In the result, the appeal is allowed and the judgment of the
conviction and order of sentence passed against the
appellant/accused for the offence punishable under Section 8(2)
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
