Kerala High Court
Sindhu vs State Of Kerala on 9 July, 2025
2025:KER:50191
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 9TH DAY OF JULY 2025 / 18TH ASHADHA, 1947
CRL.A NO. 1150 OF 2009
AGAINST THE ORDER/JUDGMENT DATED 01.06.2009 IN SC
NO.123 OF 2007 OF ADDITIONAL SESSIONS COURT (ADHOC)-II,
KOZHIKODE
APPELLANT/ACCUSED:
SINDHU, W/O. RAMANKUTTY,
KAVILAM KANHIRATHINGAL HOUSE,
KUNNAMANGALAM AMSOM DESOM, KOZHIKODE.
BY ADV SHRI.P.V.ANOOP
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY SMT. N.S. HASNAMOL, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
08.07.2025, THE COURT ON 09.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
The sole accused in S.C.No.123/2007, on the file of
Additional Sessions Court, Kozhikode (Adhoc-II), has preferred
this appeal challenging the judgment of conviction and order of
sentence passed against him for the offence punishable under
Section 55(g) of the Abkari Act.
2. The prosecution allegation, in brief, is that, on
22.09.2005, the accused was found in possession and transmit of
10 litres of wash in a pot through the road in front of the house of
one Balan Nair at Chathankavu, for the purpose of brewing arrack
in contravention of the provisions of the Abkari Act, and thereby
committed an offence punishable under Section 55(g) of the
Abkari Act.
3. Upon conclusion of the investigation, the final report
was laid before the Judicial First Class Magistrate Court,
Kunnamangalam. 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, Kozhikode, under Section 209 of Cr.PC. The
learned Session Judge, having taken cognizance of the offence
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made over the case to the Additional Sessions Court (Adhoc-II),
Kozhikode, for trial and disposal. On the appearance of the
accused before the trial court, the learned Additional Session
Judge, after hearing both sides under Section 227 of Cr.P.C. and
upon perusal of the records, framed a written charge against the
accused for an offence punishable under Section 55(g) 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 five witnesses as
PW1 to PW5, and marked Exts.P1 to P5. MO1 was exhibited and
identified. After the completion of prosecution evidence, the
accused was questioned under Section 313 Cr.P.C., during which
he denied all the incriminating materials brought out against him.
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 55(g) of the Abkari Act, and he was
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convicted and sentenced to undergo rigorous 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 rigorous
imprisonment for a further period of six months. Aggrieved by 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 wash 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, the sample seal or specimen
impression of the seal allegedly used is nowhere affixed. The
learned counsel further pointed out that the property list as per
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which the thondi articles, as well as the sample, were produced
before the court was not produced and marked in evidence in this
case, and the same is fatal to the prosecution. 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 drawn from the spot as well as
reached for examination in the chemical examination laboratory is
one and the same 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 warrant
no interference.
8. A perusal of the record 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
Excise Inspector, Kunnamangalam Excise Range, on 22.09.2005.
When the detecting officer was examined as PW4, he narrated the
entire sequence of events leading to the detection of the
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contraband and its seizure procedures. The seizure Mahazar
prepared contemporaneous with the detection of the contraband
was marked as Ext. P1.
9. The independent witnesses cited by the prosecution to
prove the alleged seizure were examined as PW2 and PW3.
However, during examination, both of them 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 witnesses 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. 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, particularly when, 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.
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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
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 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
analyzed by the chemical examiner.
11. Likewise, in Ext.P1 seizure Mahazar, nothing is
mentioned about the procedures of sampling and sealing which
were adopted. During the examination before the court, PW4, 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.
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12. A perusal of the record further reveals that the property
list as per which the thondi articles and the sample were produced
before the court is not seen marked in evidence in this case. It is
highly dubious why such a crucial document is not marked in
evidence. Only when the property list is marked in evidence, this
court can verify the date of production of the sample, details of
the items produced, etc. Therefore, I have no hesitation in
holding that the non production and marking of the property list
in evidence is also fatal to the prosecution and the same alone is
a ground for acquittal.
13. In short, 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 ultimately
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 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 55(g)
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
ncd
