Kerala High Court
M.Udayan vs State Of Kerala on 8 July, 2025
2025:KER:49807
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 8TH DAY OF JULY 2025 / 17TH ASHADHA, 1947
CRL.A NO. 441 OF 2014
CRIME NO.50/2008 OF HOSDURG EXCISE RANGE OFFICE, KASARGOD
AGAINST THE JUDGMENT DATED 26.04.2014 IN SC NO.427 OF
2011 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT- I,
KASARAGOD
APPELLANT/ACCUSED:
M.UDAYAN
AGED 30 YEARS
S/O M.SANKARAN,
RESIDING AT MAILATTY HOUSE,
PANAYAL VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT.
BY ADVS.
SRI.T.MADHU
SMT.C.R.SARADAMANI
RESPONDENT/COMPLAINANT-STATE:
STATE OF KERALA
THROUGH THE EXCISE INSPECTOR,
HOSDURG EXCISE RANGE OFFICE,
KASARAGOD DISTRICT,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.
ADV.
SRI.RENJITH GEORGE, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
07.07.2025, THE COURT ON 08.07.2025 DELIVERED THE FOLLOWING:
CRL.A. No. 441 OF 2014
:2:
2025:KER:49807
JUDGMENT
The sole accused in S.C.No.427/2011, on the file of
Additional Sessions Court-I, Kasaragod, 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 in brief is that, on
06.09.2008, at 12.20 hrs, the accused was found in possession
and transit of 200 packets of arrack containing 100ml each in a
scooter bearing registration No.KL-14-A-8974, though
Mailatti-Koottakani road in Panayal village, 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-II,
Hosdurg. 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 Session, Kasaragod, under Section 209 of Cr.PC. The
learned Sessions Judge, after taking cognizance made over the
CRL.A. No. 441 OF 2014
2025:KER:49807
case to the Additional Sessions Court-I, Kasaragod, for trial and
disposal. On appearance of the accused before the trial court, the
learned Additional Sessions 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 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. The prosecution in its bid to prove the charge levelled
against the accused has altogether examined six witnesses as
PW1 to PW6, and marked Exts.P1 to P12. 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. But no evidence, whatsoever, was
adduced from the side of the accused.
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
CRL.A. No. 441 OF 2014
2025:KER:49807
was convicted and sentenced to undergo simple imprisonment for
a period of 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 one year. 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 analyzed in the laboratory is the
very same sample drawn from the contraband seized in this case.
It is pointed out that, in the Mahazar as well as in 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
CRL.A. No. 441 OF 2014
2025:KER:49807
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. 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 and hence warrants no interference.
8. A perusal of the record reveal 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
Preventive Officer attached to Excise Enforcement and
Anti-Narcotics Special Squad, Kasaragod, on 06.09.2008. 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 Mahazar
prepared contemporaneous with the detection of the contraband
was marked as Ext. P4.
CRL.A. No. 441 OF 2014
2025:KER:49807
9. The independent witnesses cited by the prosecution to
prove the alleged seizure were examined as PW3 and PW6.
However, during examination, PW1 and PW6 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 the independent witnessess 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 accused in a case of this nature.
10. 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
CRL.A. No. 441 OF 2014
2025:KER:49807
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.P4 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 find 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.
11. Likewise, in Ext.P4 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, had not given any evidence regarding the nature
of the seal used for sealing the samples as well as the residue of
the contraband allegedly seized in this case.
12. As perusal of the property list, which is marked as
Ext.P7, and is a crucial document in a prosecution under Abkari
Act reveals that, the sample seal does not find a place in it. It is
CRL.A. No. 441 OF 2014
2025:KER:49807
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.
13. 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
examined in the chemical examiner's laboratory. In the above
CRL.A. No. 441 OF 2014
2025:KER:49807
circumstances, 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
conviction and the order of sentence passed against the
appellant/accused for the offence punishable under Section 8(2)
r/w 8(1) 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
ANS
