Kerala High Court
Rajendran @ Velu vs State Of Kerala on 4 July, 2025
2025:KER:48816
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 4TH DAY OF JULY 2025 / 13TH ASHADHA, 1947
CRL.A NO. 853 OF 2014
CRIME NO.476/2008 OF PANDALAM POLICE STATION, PATHANAMTHITTA
AGAINST THE ORDER/JUDGMENT DATED IN CP NO.150 OF 2008 OF
JUDICIAL MAGISTRATE OF FIRST CLASS, ADOOR ARISING OUT OF THE
ORDER/JUDGMENT DATED 18.08.2014 IN SC NO.133 OF 2012 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT- II,
PATHANAMTHITTA
APPELLANT/ACCUSED:
RAJENDRAN @ VELU
AGED 40 YEARS
S/O.GOPALAN, VENMANITHEKKETHIL VEEDU, CHIRAMUDI,
POOZHIKKADU, PANDALAM.
BY ADVS.
SRI.K.SHAJ
SMT.ANJU MOHAN
SRI.RENJITH.R
SRI.RENJIT GEORGE
SRI.SAJJU.S
SRI.S.K.SUJITH KRISHNA
SRI.S.VISHNU (ARIKKATTIL)
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
ADV.
SMT. N.S. HASNA MOL, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
03.07.2025, THE COURT ON 04.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
The sole accused in S.C.No.133/2012, on the file of
Additional District & Sessions Court-II, Pathanamthitta has
preferred this appeal challenging the judgment of conviction and
order of sentence passed against him in the said case for the
offence punishable under Section 8(2) r/w 8(1) of the Kerala
Abkari Act.
2. The prosecution allegation in brief is that, on
27.06.2008, at 6.00 p.m., the accused was found on the side of a
road near 'Cherumudi Junction', possessing 1.5 liters of spirit
diluted arrack, and 20 liters of diluted spirit 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,
Adoor. 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
Court of Sessions, Pathanamthitta, under Section 209 of Cr.PC.
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The learned Session Judge, after taking cognizance made over the
case to the Additional Sessions Court-II, Pathanamthitta, 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 perusal of 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 in its bid to prove the charge levelled
against the accused has altogether three witnesses as PW1 to
PW6, and marked Exts.P1 to P6. MO1 and MO4 series were
identified. 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.
5. 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
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was convicted and sentenced to undergo rigorous imprisonment
for three years 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 fifteen days. 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 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 on
the basis of summaries 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 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, property list, and the
forwarding note, the sample seal or specimen impression of the
seal allegedly used is nowhere affixed. In short, the crux of the
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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.
8. 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.
9. 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 Sub Inspector of Police, Pandalam, on
27.06.2008. When the detecting officer was examined as PW3, he
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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 Ext. P1.
10. The independent witnesses cited by the prosecution to
prove the alleged seizure was examined as PW1. However, during
examination, PW1 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 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
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accused in a case of this nature.
11. 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.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 not 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.
12. Likewise, in Ext.P1 seizure Mahazar, nothing is
aramentioned about the procedures of sampling and sealing which
was 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
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the contraband allegedly seized in this case.
13. Additionally, it is pertinent to note that in the copy of
the forwarding note, which is marked as Ext.P5 also, the sample
seal or specimen impression of the seal is not provided. In
Sasidaran V. State of Keala ( 2007 (1) KLT 720), this Court
held that the prosecution has a duty to prove that the sample
taken from the contraband liquor seized from the accused is the
sample reached at the hand of the chemical examiner. Only if the
specimen impression of the sample or sample seal is affixed in the
forwarding note, the chemical examiner would get an opportunity
to compare the seal found on the sample bottle with the sample
seal provided in the forwarding note. Hence, in the absence of
the seal in the forwarding note, it cannot be said that the sample
got analysed in the laboratory is the sample drawn from the
contraband seized in this case and forwarded for examination.
14. In Prakash V. State of Kerala (2016 (1) KLT SN 89
(C.No. 96) held as follows;
"Further in the absence of specimen seal impression
of the seal used for sealing the article having been
produced in Court and in the absence of producing
and marking the forwarding note which is expected
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to contain the specimen seal impression of the seal
used for sealing the sample for the purose of
enabling the chemical examiner to verify and satisfy
regarding the genuineness of the sample produced
for examination, it cannot be said that the
prosecution has proved beyond reasonable doubt
that the articles were produced in Court in the same
condition in which it was siezed and it reached the
chemical examiner's lab in a tamper proof condition
and the chemical analysis report relates to the
representative sample said to have been taken from
the large quantity of contraband article alleged to
have been seized from the posession of the accused.
If this was not proved to the satisfaction of the
Court, then it cannot be said that the prosecution
had succeeded in bringing home the complexity of
the accused in the commission of the crime and that
benefit must be given to the accused".
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 could not be said that the sample collected at the
time of detection is the very same sample that was later
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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)
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
ANS
