Kerala High Court
Prasannan vs State Of Kerala on 9 July, 2025
2025:KER:50193
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. 42 OF 2014
CRIME NO.25/2008 OF KONNY EXCISE RANGE, Pathanamthitta
AGAINST THE ORDER/JUDGMENT DATED IN CP NO.44 OF
2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-II,PATHANAMTHITTA ARISING OUT OF THE ORDER/JUDGMENT
DATED 03.01.2014 IN SC NO.429 OF 2012 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT - II,PATHANAMTHITTA
APPELLANT/ACCUSED:
PRASANNAN, AGED 52 YEARS, S/O.THANKAPPAN,
RESIDING AT PATHISSERIL HOUSE, THAZHAM,
MALAYALAPPUZHA VILLAGE, KONNI TALUK,
PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.V.SETHUNATH
SRI.S.JUSTUS
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SMT. N.S. HASNA MOL, 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.429/2012, on the file of
Additional District and Sessions Court-II, Pathanamthitta, has
preferred this appeal challenging the judgment of conviction
and order of sentence passed against him for the offence
punishable under Section of the Abkari Act.
2. The prosecution allegation in brief is that, on
04.04.2008, at 8.45 a.m., at Pathissery junction,
Cheenkalthadam road, the accused was found in possession
of 2 litres of arrack in a can having a capacity of 2½ litres in
contravention 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. Upon completion of the investigation, the final
report was laid before the Judicial First Class Magistrate
Court-II, Pathanamthitta. 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, Pathanamthitta,
under Section 209 of Cr.PC. The learned Sessions Judge,
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having taken cognizance of the offence made over the case to
the Additional Sessions Court-II, Pathanamthitta for trial and
disposal. On the 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 upon 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 five
witnesses as PW1 to PW5, and marked Exts.P1 to P8. 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 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.
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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
rigorous imprisonment for four years and to pay a fine of Rs.1
lakh. In default of payment of the fine, the accused was
ordered to undergo simple imprisonment for a 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 analyzed in the laboratory is the very same sample
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drawn from the contraband seized in this case. It is pointed
out that, in the Mahazar, property list as well as in the
forwarding note, 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 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 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, Konni Excise
Range on 04.04.2008. When the detecting officer was
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examined as PW2, he 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. P1.
9. The independent witnesses cited by the prosecution
to prove the alleged seizure were examined as PW1 and PW4.
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. 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
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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
prosecution to satisfy the court that all the procedures
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, 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 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 got 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
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court, PW2, 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. Moreover, a perusal of the forwarding note, which
was marked as Ext.P6, the sample seal or specimen
impression of the seal does not find a place therein. The
purpose of affixing the seal in the forwarding note is to
enable the chemical examiner to compare the seal found on
the sample with the specimen seal or sample seal provided in
the forwarding note. Only upon such comparison, the
chemical examiner can confirm that the sample received for
analysis is the same one forwarded from the court. In
Rajamma v. State of Kerala [2014 (1) KLT 506], this Court
held that in the absence of convincing evidence as to the
production of the specimen impression of the seal or the
sample seal to the chemical examiner, no evidentiary value
can be attributed to the chemical analysis report.
13. Therefore, I have no hesitation in holding that the
prosecution failed to prove that the procedures of seizure and
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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 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
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