Kerala High Court
Chacko vs State Of Kerala on 4 July, 2025
2025:KER:48953
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. 409 OF 2014
CRIME NO.469/2007 OF AMBALAPPUZHA POLICE STATION, ALAPPUZHA
AGAINST THE ORDER/JUDGMENT DATED IN CP NO.39 OF 2009
OF JUDICIAL MAGISTRATE OF FIRST CLASS, AMBALAPUZHA ARISING
OUT OF THE ORDER/JUDGMENT DATED 12.03.2014 IN SC NO.737 OF
2009 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II,
ALAPPUZHA
APPELLANT/ACCUSED:
CHACKO
AGED 48 YEARS
S/O.DEVASSIA, JESSY BHAVANAM,
KARUMADI, KIZHAKKE MURI, WARD NO 1,
THAKAZHI PANCHAYAT
BY ADV SHRI.MATHEW JAMES
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE STATION HOUSE OFFICE,
AMBALAPUZHA POLICE STATION
THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM 682 031
ADV.
SRI.RENJITH GEORGE, PUBLIC PROSECUTOR
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THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING
ON 04.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
The sole accused in S.C.No.737 of 2009 on the file of the
Additional Sessions Court-II, Alappuzha, 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 Abkari Act.
2. The prosecution allegation is that; on 05.11.2007, at 6.00
p.m., the accused was found in possession of 2 ¾ liters of arrack in
two bottles of 1 ½ liter capacity each, for the purpose of sale near
Karumadi Milma Junction, in violation of the provision of the Abkari
Act, and thereby committed the offence punishable under Section
8(2) r/w 8(1) of the Abkari Act.
3. After completion of the investigation, the final report was
submitted before the Judicial First Class Magistrate Court,
Ambalappuzha. On being satisfied that the 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 Session,
Alappuzha, under Section 209 Cr.PC. The learned Sessions Judge,
after taking cognizance, made over the case for trial and disposal to
the Additional Sessions Court-II, Alappuzha. On appearance of the
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accused before the trial court, the learned Additional Sessions Judge,
after hearing both sides under Section 227 Cr.PC. and perusal of
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. From the side of the prosecution PW1 to PW4 were
examined and marked Exts.P1 to P12. MO1 to MO6 series were
exhibited and 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.
From the side of the accused, one witness was examined as PW1.
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 was
convicted and sentenced to undergo simple imprisonment for six
months 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
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further period of three months. 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 and the property list, 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 a 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
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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. This case was detected by the Sub Inspector of Police,
Ambalappuzha on 05.11.2007. When he was examined as PW1 he
had narrated the entire sequence of events relating to the detection
of the contraband and its seizure. The seizure Mahazer prepared at
the spot of detection contemporaneously was marked as Ext.P1.
10. The independent witnesses cited by the prosecution to
prove the alleged seizure were examined as PW1 and PW2. However,
on examination before the court, PW1 and PW2 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
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the independent witnesses had any serious impact on the outcome of
the case, it is to be noted that it is a common occurrence that the
independent witnesses turn hostile to the prosecution in almost all
Abkari cases for reasons best known to them. However, now, by a
series of judicial pronouncements, it is well settled that the hostility
shown by independent witnesses in an Abkari case is of little
significance if the evidence of the official witnesses, including the
detecting officer, is convincing and reliable. Notably, in the case at
hand, even the accused is not having a case that the Sub Inspector
who booked him in this case is having any sort of animosity or
grudge towards him that would motivate the detecting officer to
falsely implicate him 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 procedural formalities 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, a perusal of the seizure Mahazer prepared in this case
and marked as Ext.P1 reveals that neither the sample seal nor the
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specimen impression of the seal allegedly used by the detecting
officer for sealing the sample is provided in the Mahazar. The absence
of the 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 that got analysed in the
chemical examiner's laboratory.
12. Likewise, in Ext.P1 seizure Mahazar, nothing is mentioned
about the procedures of sampling and sealing which was adopted.
During the examination, PW4, the detecting officer, had not given any
evidence regarding the nature of the seal used by him in sealing the
sample, as well as the residue of the contraband seized in this case.
Therefore, I have no hesitation in holding that the prosecution failed
to prove that the seizure and sampling were done in a foolproof
manner.
13. Additionally, it is pertinent to note that in the property list,
which is marked in evidence as Ext.P9, the specimen impression of
the seal or the sample seal affixed in the sample bottle does not find
a place. Only when the sample seal is provided in the property list,
the thondi clerk who received the sample in the court could verify the
sample seal found on the samples and compare the same with the
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sample seal provided in the property list. Therefore, I have no
hesitation in holding that in the case at hand, due to the absence of
the sample seal in the property list, the thondi clerk did not get an
opportunity to cross-check the seal found on the sample bottle with
the property list.
14. At this juncture, it is germane to note that the copy of the
forwarding note is seen not marked in evidence in this case. Of
course, the non-production of the copy of the forwarding note is 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 so as to help the chemical examiner to compare the seal
found on the sample with the sample seal provided in the forwarding
note. In the absence of the copy of the forwarding note, it is
impossible to enter into a conclusion that the sample collected from
the spot is the very same sample that was later got examined at the
laboratory.
15. In the above circumstance, it is found that the prosecution
has not succeeded in proving the case against the accused beyond
reasonable doubt.
In the result, the appeal is allowed and the judgment of
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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 are 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
