Kerala High Court
A.C.Narayanan vs State Of Kerala on 4 July, 2025
2025:KER:48815
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. 280 OF 2014
AGAINST THE ORDER/JUDGMENT DATED 22.02.2014 IN SC
NO.1121 OF 2012 OF ADDITIONAL DISTRICT COURT & SESSIONS
COURT - III, KASARAGOD, KASARAGODE
APPELLANT:
A.C.NARAYANAN
AGED 38 YEARS
S/O.ANGARA, BERAKA HARIJAN COLONY,
MULIYAR VILLAGE, KASARAGOD TALUK
BY ADVS.
SRI.T.SETHUMADHAVAN (SR.)
SHRI.K.JAYESH MOHANKUMAR
SRI.PUSHPARAJAN KODOTH
SMT.VANDANA MENON
RESPONDENT:
STATE OF KERALA
REP BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
BY ADVS
SRI.RENJITH GEORGE, 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.1121 of 2012 on the file of the
Additional Sessions Court-III, Kasargod, has preferred this
appeal challenging the judgment of conviction and the order of
sentence passed against him in the said case for an offence
punishable under Section 55(a) of the Abkari Act.
2. The prosecution case allegation is that, on 22.12.2005,
at 10.45 a.m., the accused was found possessing 23 packets of
arrack, each containing 100 ml in a white polythene bag for the
purpose of sale in violation of the provisions contained under the
Abkari Act. Hence, the accused is alleged to have committed the
offence punishable under Section 55(a) of the Abkari Act.
3. After completion of the investigation, the final report
was submitted before the Judicial First Class Magistrate-I,
Kasargod. 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, Kasargod under Section 209 Cr.PC. The learned
Sessions Judge, after taking cognizance, made over the case for
trial and disposal to the Additional Sessions Judge-III, Kasargod.
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On appearance of the 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 55(a) 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, four witnesses were
examined as PW1 to PW4 and marked Exts.P1 to P13. After the
completion of the prosecution evidence, when the accused was
questioned under Section 313 Cr.PC., he denied all the
incriminating materials brought out against him in evidence. On
finding that the accused could not be acquitted under Section
232 Cr.PC, he was called upon to enter on his defence and
adduce any evidence he may have in support thereof. However,
no evidence whatsoever was adduced from the side of the
accused. After trial, the accused was found guilty of the offence
punishable under section 55(a) of the Abkari Act, and he was
convicted and sentenced to undergo rigorous imprisonment for
one year and to pay a fine of Rs.1 Lakh. In default of payment of
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fine, the accused was ordered to undergo rigorous imprisonment
for a period of three months. Assailing the said judgment of
conviction and order of sentence passed, the accused has come
up with this appeal.
5. I heard the learned counsel appearing for the appellant
and the learned Senior Public Prosecutor.
6. The learned counsel for the appellant/accused 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 sampling and sealing the seized
contraband scrupulously, leaving room for tampering. According
to the counsel, the detecting officer committed a grave
procedural irregularity by not affixing the sample seal or
specimen impression of the seal in the seizure Mahazar prepared
in this case. It is pointed out that, in the absence of a seal in the
seizure Mahazar, it cannot be said 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. The learned
counsel further urged that during the examination before the
court, the detection officer failed to depose about the nature of
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the seal used by him in sealing the sample. The learned counsel
further submitted that though there is a delay of more than six
years inordinate delay in conducting the investigation, no
explanation whatsoever has been offered from the side of the
prosecution for the said delay, and hence the same is fatal to the
prosecution. The counsel also pointed out that the specimen
impression of the seal or sample seal was not even provided in
the property list, as per which the sample as well as the residue
of the contraband were produced before the court. 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, and that
the sample was not produced before the court in a foolproof
manner.
7. 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. According to the Public
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Prosecutor, since there was no delay in producing the sample
before the court, there is no room for any manipulations or
tampering. The learned Public Prosecutor further urged that the
delay in conducting the investigation in this case has no serious
bearing on the outcome of the case, especially when no
prejudice is seen to have been caused to the accused due to the
said delay.
8. 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 Inspector Excise Range, Kasargod, on
22.12.2005. When the detecting officer was examined as PW1,
he had narrated the entire sequence of events relating to the
detection of the contraband and its seizure procedures. The
seizure Mahazer prepared at the spot of detection
contemporaneously was marked as Ext.P5.
9. The independent witness cited and examined by the
prosecution to prove the alleged recovery of the contraband was
examined as PW3. However, on examination before the court,
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PW3 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 on the outcome of the case, it is to be
noted that it is a common occurrence that the independent
witnesses are turning hostile to the prosecution in almost all
Abkari cases 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 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 excise 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.
10. However, when a court is called upon to rely solely on
the evidence of the detecting officer and the contemporary
documents prepared by him, the court must act with much care
and circumspection. It is incumbent upon the prosecution to
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satisfy the court that all the procedural formalities relating to the
search, seizure, and sampling of the contraband were carried out
in foolproof manner, thereby ruling out any possibility of
tampering. Nevertheless, a perusal of the seizure Mahazer
prepared in this case and marked as Ext.P6 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 sample
seal or specimen impression of the seal in the seizure Mahazer 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.
11. Likewise, in Ext.P6 seizure Mahazar, nothing is
mentioned about the procedures of sampling and sealing which
was adopted. During the examination, PW1, 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.
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12. More curiously, a perusal of the property list, which is a
prime document as far as an Abkari case is concerned, reveals
that the sample seal does not find a place in it also. Only when a
sample seal or specimen impression of the seal is provided in the
property list, the Thondi clerk who receives the property could
compare the seal found on the sample as well as the Thondi
articles produced before him with the sample provided in the
property list. Therefore, the inaction on the part of the detecting
officer in affixing a sample seal or specimen impression of the
seal in the property list is also fatal to the prosecution, leaving
room for allegations of tampering.
13. As rightly pointed out by the learned counsel for the
petitioner, this case was detected on 22.12.2005, whereas the
final report was laid only on 08.05.2012. There is a delay of
more than five years in laying the charge sheet. Despite such an
inordinate delay, no explanation whatsoever has been offered by
the prosecution. It being an Abkari case, the main phase of the
investigation would be practically over at the time of detection of
the case itself. Therefore, I am at a loss to understand why such
a lag had occurred in completing the remaining part of the
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investigation in this case. The long delay in conducting the
investigation in the absence of a sufficient explanation is fatal to
the prosecution. In the above circumstances, it is found that
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
55(a) of the 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
