Kerala High Court
Rajan @ Joseph vs State Of Kerala on 9 July, 2025
2025:KER:50201
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. 43 OF 2014
CRIME NO.61/2009 OF CHITTAR EXCISE RANGE OFFICE,
PATHANAMTHITTA
AGAINST THE ORDER/JUDGMENT IN C.P NO.43 OF 2012 OF
JUDICIAL FIRST CLASS MAGISTRATE COURT-I, RANNI ARISING OUT
OF THE JUDGMENT DATED 10.01.2014 IN S.C NO.820 OF 2012 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT - II,
PATHANAMTHITTA
APPELLANT/ACCUSED:
RAJAN @ JOSEPH, AGED 54 YEARS,
S/O.VARUGHESE, RESIDING AT THUMPARAYIL HOUSE,
SEETHAKUZHY, CHITTAR SEETHATHODE VILLAGE, RANNI TALUK,
PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.V.SETHUNATH
SRI.S.JUSTUS
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.
SRI. ALEX M THOMBRA- SR.PP
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
08.07.2025, THE COURT ON 09.07.2025 DELIVERED THE FOLLOWING:
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:2:
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JUDGMENT
The sole accused in S.C.No.820/2012, on the file of
Additional 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 8(2) r/w 8(1) of the Abkari Act.
2. The prosecution allegation in brief is that, on
24.09.2009, at 12.00 pm.,, the accused was found in possession
of 2 litres of arrack near a culvert situated in front of the house
one Abraham at Seethakkuzhi Muri in Seethathodu village, 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 conclusion of the investigation, the final report
was laid before the Judicial First Class Magistrate Court-I, Ranni.
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, having taken cognizance of the offence made over the
case to the Additional Sessions Court-II, Pathanamthitta, for trial
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and disposal. On 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 a 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. One witness was
examined as a court witness as CW1. 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.
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
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for four years 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 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 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. In short,
the crux of the argument of the 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
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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
Assitant Excise Officer, Excise Office, Chittar. 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
contemporaneously 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
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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 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 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
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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 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 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. Moreover, in a case of this nature, it is the bounden
duty of the prosecution to show that the sample drawn from the
spot remained in safe custody until it reached the hands of the
chemical examiner for analysis. Only when such a secure and
uninterrupted chain of custody is proved it can be held that the
sample analyzed is the very same one drawn from the contraband
allegedly seized from the accused. Keeping in mind the above
while reverting to the case at hand, it can be seen that in Ext.P6
forwarding note, the name of the Excise Guard with whom the
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contraband was entrusted from the court for producing before the
chemical examiner's laboratory does not find a place. When the
space designated in the forwarding note for recording the name of
the Excise Guard remains blank, it is incumbent on the part of the
prosecution to examine the Thondi clerk as well as the Excise
Guard as a witness to prove that there was a tamper-proof
despatch of the sample from the court and an untampered transit
of the same to the laborotoray. The same view has been taken by
this Court in Kumaran P. v. State of Kerala and Another
(2016 (5) KHC 632).
13. Keeping in mind, while reverting to the case at hand, it
can be seen that the Thondi clerk was examined as a court
witness in this case. Nevertheless, during the examination before
the court, he did not depose anything regarding the despatch of
the sample to the chemical examiner's laboratory. Moreover, he
did not state the name of the Excise guard with whom the sample
was entrusted, nor did he mention the date on which the same
was entrusted. Apart from stating that it was he who received the
sample when it was produced before the court after detection,
nothing more was deposed by him. Therefore, his testimony does
not assist the prosecution in establishing that the sample was
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sent for chemical analysis through any Excise officials, nor does it
help to prove the identity of the person who carried the sample.
Therefore, in the facts and circumstances of the present case, I
have no hesitation in holding that the prosecution failed to prove
the link evidence pertaining to the safe custody of the sample
until it reached the hands of the chemical examiner. Therefore, it
is liable to be held that the prosecution failed to prove the charge
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 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
rkr
