Kerala High Court
Shibu , S/O.Karunakaran vs State Of Kerala on 7 July, 2025
Crl.Appeal No.141 of 2014 1 2025:KER:49443
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 7TH DAY OF JULY 2025 / 16TH ASHADHA, 1947
CRL.A NO. 141 OF 2014
CRIME NO.55/2009 OF Thiruvalla Excise Range Office,
Pathanamthitta
AGAINST THE ORDER/JUDGMENT DATED IN CP NO.82 OF 2010
OF JUDICIAL MAGISTRATE OF FIRST CLASS, THIRUVALLA ARISING
OUT OF THE ORDER/JUDGMENT DATED 07.02.2014 IN SC NO.457 OF
2011 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV
APPELLANT/ACCUSED:
SHIBU , S/O.KARUNAKARAN
PANAMPALLY HOUSE, KAVUMBHAGAM, THIRUVALLA,
PATHANAMTHITTA DISTRICT.
BY ADV SRI.C.S.MANU
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY
THE EXCISE INSPECTOR, RANGE OFFICE, THIRUVALLA,
(NOTICE TO WHOM MAY BE SERVED ON THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
ADV. SRI. ALEX M THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
02.07.2025, THE COURT ON 07.07.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
This appeal has been preferred by the sole accused in S.C
No.457 of 2011 on the file of Additional Sessions Court-IV,
Pathanamthitta, challenging the judgment of conviction and
order of sentence passed against him for an offence punishable
under Section 55(a) of Abkari Act.
2. The prosecution allegation is that on 19.11.2009 at
about 3 p.m., the accused was found transporting spirit in 8
white plastic cans containing 33 litres of spirit each in a Maruti
Alto car bearing registration No.KL-3J-4332 in violation of
provisions of Abkari Act and thereby committed an offence
punishable under Section 55(a) of Abkari Act.
3. After completion of investigation, the final report was
laid before the Judicial First Class Magistrate Court, Thiruvalla.
On being satisfied that the case is one exclusively triable by the
court of session, the learned Magistrate after complying with all
formalities committed the case to the Court of Session,
Pathanamthitta. The learned Sessions Judge after taking
cognizance, made over the case for trial and disposal to
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Additional Sessions Court-IV, Pathanamthitta. 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 55(a) of
Abkari Act, to which he pleaded not guilty and claimed to be
tried.
4. During trial PW1 to PW8 were examined and Exts.P1 to
P19 were marked. After completion of the prosecution evidence
the accused was questioned under Section 313 Cr.PC and on
questioning, he denied all the incriminating circumstances
brought on record and pleaded innocence. As it was not a fit
case to acquit under Section 232 Cr.PC the accused was called
upon to enter on his defence and to produce any evidence that
he may have in support thereof. However, no evidence,
whatsoever, was produced from the side of the accused. After
trial, the learned Additional Sessions Judge found the accused
guilty of an offence punishable under Section 55(a) of the
Abkari Act, and he was convicted and sentenced to undergo
rigorous imprisonment for five years and to pay a fine of
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Rs.5,00,000/-. In default of payment of the fine, the accused
was ordered to undergo simple imprisonment for one year.
Aggrieved by the said judgment of conviction and order of
sentence passed, the accused has preferred 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 would submit that
the trial court convicted the accused without properly
appreciating the facts and evidence brought out in this case.
According to the learned counsel, the accused had no
connection either with the contraband seized in this case or
with the vehicle from which the same was recovered. It was
contended that the accused was implicated in this case on
account of mistaken identity. The counsel further urged that the
search and seizure procedures were not done in a foolproof
manner, thereby leaving open the possibility of tampering. 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
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drawn at the spot of detection itself and was produced before
the court on the very next day. According to the Public
Prosecutor, since there was no delay in producing the sample
before the court, there is no room for any manipulations or
tampering.
7. As already stated, the allegation which the accused
faces is that he had transported spirit in a car bearing
registration No.KL-3J-4332. As per the prosecution allegation,
ten plastic cans containing 33 litres of spirit each were detected
from the said vehicle. When the Excise Inspector, Thiruvalla
Excise range, who detected this case was examined as PW1, he
deposed that on 19.11.2009 at 2.30 pm, while he was
conducting vehicle inspection by standing near Nelladu
Junction, he saw a Maruti Alto car bearing registration
No.KL-3J-4332 coming from Kozhencherry Bhagam. He
signalled to stop the said vehicle by showing his hand. However,
the driver of the car did not stop and instead drove away the
car. Then he, along with the Excise party, chased the said car,
and when they reached in front of the house of one Rajan
Mathew, the driver stopped the car and fled from the spot.
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Although the excise party attempted to apprehend the accused,
they could not succeed. Thereafter, PW1 conducted a search of
the vehicle. On inspection, 8 plastic cans containing
approximately 33 litres of spirit were found inside each cans.
When the dashboard of the car was checked, an insurance
certificate, a bank passbook, a sale agreement and a driving
licence were also found. According to PW1, on verification of
the insurance certificate, it was revealed that the car was
insured in the name of one Muraleedharan Nair. The sale
agreement recovered from the vehicle revealed that it pertained
to the sale of the said car, and it was executed by one Mathew
George of Changanacherry in favour of P.K.Shibu, the accused
in this case. The bank passbook found in the car was in the
joint names of the accused and his wife. The driving licence
found in the car was also in the name of the accused. During
examination, PWI narrated the entire sequence of events that
happened in this case and also the procedures of search and
seizure carried out by him, including the drawing of sample and
sealing the same.
8. From the rival contentions advanced, it is gatherable
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that the core issue in this appeal revolves around the identity of
the accused. It is undisputed that when an offence is
committed, the prime aspect for investigation is to find out who
is the perpetrator of the crime. Likewise, during the trial, the
prosecution is duty-bound to prove that the accused standing
trial is, in fact, the person who committed the crime.
9. Given the above, while coming to the case at hand, it
can be seen that this is not a case in which the accused was
arrested from the spot at the time of detection of the
contraband. The evidence of PW1 itself shows that while he was
conducting vehicle inspection by standing on the side of the
road, the car involved in this case approached, and when he
signalled to stop it, the driver accelerated and drove away
without stopping it. Though the detecting officer and his team
chased the vehicle and made an attempt to apprehend the
driver, they were unsuccessful, as the driver stopped the case
and fled from the spot.
10. The sequence of events narrated above indicates that
the detecting officer did not get an opportunity to identify the
person who was driving the car. At this juncture, it is pertinent
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to note that the identifying features of the driver are not
mentioned in the seizure mahazar prepared in this case.
Furthermore, the detecting officer does not even have a case
that he had prior acquaintance with the driver. It is germane to
note that the accused was not arrested in this case at any stage
during the investigation. There was no occasion for witnesses to
see and identify the accused. More pertinently, in the evidence
of PW1, it is nowhere stated that he saw the face of the
accused at the spot.
11. However, I am not unmindful of the fact that the
detecting officer has a definite case that after the driver fled
from the scene, he conducted an inspection of the vehicle, and
in the inspection, one RC book, a bank passbook, an insurance
certificate, and a driving licence were recovered. From the
evidence it is established that the driving licence and the
passbook found in the car were in the name of the accused.
Significantly, the accused also does not have a case that the
said passbook and driving licence do not belong to him. Rather,
his case is that the detecting officer in this case who was
nurturing animosity towards him had trespassed into his house
Crl.Appeal No.141 of 2014 9 2025:KER:49443
and took away certain documents from his house and foisted
the present case against him. However, no documents
whatsoever have been produced from the side of the accused to
show that he had lodged any complaint regarding the
above-said high-handed acts of the excise officer so far.
Therefore, I am of the view that the case of the accused in the
above regard lacks credulity.
12. Nevertheless, even assuming that the documents
were recovered from the vehicle the same is not a reason to
enter into an automatic inference that it was the accused who
transported the contraband in the car. When there is no direct
evidence to show that the accused was the person who drove
the vehicle at the relevant time, mere recovery of documents
bearing the name of the accused from the vehicle is not
conclusive proof of his involvement in the crime unless it is
corroborated by other substantive evidence. A court could not
be called upon to make inferences regarding the identity of the
accused. On the other hand, it is the duty of the prosecution to
adduce positive evidence to show that it was the accused who
committed the offence. In the case at hand, such evidence is
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conspicuously lacking, and it is unsafe to enter into a conclusion
that it was the accused and no other who transported the
contraband in the car.
13. Further, when a court is called upon to rely solely on
the evidence of the detecting officer to prove the detection, it is
incumbent upon the prosecution to satisfy the court that all
procedures relating to the search, seizure, and sampling of the
contraband were carried out in a tamper-proof manner.
Nevertheless, in the case at hand, a bare perusal of Ext.P5
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 find a place in it. 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 that was
ultimately analyzed by the chemical examiner. Likewise, in
Ext.P5 seizure Mahazar, nothing is mentioned about the
procedures of sampling and sealing, which were adopted.
During the examination before the court, PW1, the detecting
officer, did not state anything about the nature of the seal used
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for sealing the sample as well as the residue of the contraband
allegedly seized.
14. As perusal of the property list, which is a crucial
document in prosecution under Abkari Act, reveals that the
sample seal does not find a place in it. It is only when the
sample seal or specimen impression of the seal is provided in
the property list, that the Thondi clerk who receives the
property can properly verify the seal found on the sample as
well as on the Thondi articles produced before the court and
compare with the sample provided in the property list.
Therefore, the failure on the part of the detecting officer to affix
the sample seal or include its specimen impression in the
property list is fatal to the prosecution case, leaving ample
room for allegations of tampering and it creates a doubt on
whether the sample reached the court is in fact the same
sample that was drawn from the alleged contraband. In the
above circumstances, it is found that the prosecution has failed
to prove the case against the accused beyond a reasonable
doubt.
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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 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
