Kerala High Court
Baby vs State Of Kerala on 9 July, 2025
2025:KER:50204
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. 400 OF 2014
CRIME NO.46/2012 OF PEERMEDU EXCISE RANGE OFFICE, IDUKKI
AGAINST THE JUDGMENT DATED 19.03.2014 IN SC NO.280 OF
2013 OF THE III ADDITIONAL DISTRICT & SESSIONS
COURT(ADHOC-I), THODUPUZHA, ARISING OUT OF THE
ORDER/JUDGMENT DATED IN CP.NO.103 OF 2012 OF JUDICIAL FIRST
CLASS MAGISTRATE COURT-I, PEERUMEDU
APPELLANT/ACCUSED:
BABY
AGED 64 YEARS
S/O SREEDHARAN, PATHALIL HOUSE,
OTTAMARAM DESOM, UPUTHARA VILLAGE, PEERMADE TALUK.
BY ADVS.
SRI.JOBY GEORGE
SRI.M.V.RAJENDRAN NAIR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY EXCISE INSPECTOR ERO, PEERMADU,
THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ADV.
SMT.N.S.HASNA MOL, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
07.07.2025, THE COURT ON 09.07.2025 DELIVERED THE FOLLOWING:
Crl.A.No. 400 of 2014
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'C.R.'
JUDGMENT
The sole accused in S.C. No. 280/2013, on the file of the
Additional Sessions Court-III (ADHOC-I), Thodupuzha, 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 22.07.2012,
at 7.50 a.m., near the muster shed of a tea factory at Ottamaram
in Upputhara Village, the accused was found in possession of 2
liters of arrack in a plastic can 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, Peermade.
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,
Thodupuzha, under Section 209 of Cr.PC.
4. The learned Sessions Judge, having taken cognizance of
the offence, made over the case to the Additional Sessions
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Court-III (ADHOC-I), Thodupuzha, for trial and disposal. On the
appearance of the accused, 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 the 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.
5. During the trial, from the side of the prosecution,
altogether five witnesses were examined as PW1 to PW5 and
marked Exts. P1 to P11. After the completion of prosecution
evidence, the accused was questioned under Section 313 of
Cr.P.C., during which he denied all the incriminating materials
brought out against him. On finding that this is not a case of no
evidence and hence, 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 that he may have in support thereof.
From the side of the accused, one witness was examined as DW1,
and two documents were marked as Exts. D1 and D2.
6. 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 simple imprisonment for
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one year and to pay a fine of Rs.1,00,000/-. In default of
payment of the fine, the accused was ordered to undergo simple
imprisonment for two months. Assailing the said judgment of
conviction and the order of sentence passed, the present appeal
has been preferred.
7. I heard Sri.M.V.Rajendran Nair, the learned counsel for
the appellant, and Smt.N.S.Hasnamol, the learned Public
Prosecutor.
8. The learned counsel for the appellant would submit that
the trial court failed to appreciate the facts and evidence brought
on record in this case in its proper perspective and arrived at a
conclusion of guilt in a hasty and erroneous manner. According to
the counsel, the accused was implicated in this case on the basis
of some summaries and conjectures. It was contended that the
procedures relating to seizure and sampling were not done in a
foolproof manner, leaving room for tampering. The learned
counsel further submitted that the hostility shown by the
independent witnesses to the prosecution case is fatal, especially
when the seizure and sampling procedures were not in a
tamper-proof condition. According to the counsel, it is unsafe to
act upon the solitary evidence of the detecting officer to sustain a
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conviction in this case. The counsel urged that the prosecution
failed to establish sufficient link evidence to show that the sample
allegedly drawn from the spot of detection is the very same
sample that reached the chemical examiner's laboratory for
analysis.
9. In response, the learned Public Prosecutor would contend
that, to eliminate any possibility of future allegations of
manipulation or tampering, all the procedural formalities were
scrupulously followed in this case. According to the learned Public
Prosecutor, the sample was drawn at the spot of detection itself
and was produced before the court on the very same day.
Likewise, the sample seal finds a place in crucial documents like
seizure mahazar, property list, forwarding note, etc., and
therefore, there is no reason to doubt that the sample drawn at
the time of detection is the very same sample that reached the
hands of the chemical examiner for analysis.
10. A perusal of the records reveals that to bring home the
guilt of 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 Peermade Excise Range, on 22.07.2012. When the
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detecting officer was examined as PW1, he narrated the entire
sequence of events leading to the detection of the contraband and
its seizure procedures.
11. According to PW1, on 22.07.2012, while he, along with
the Assistant Excise Inspector, Excise Range, Peermade, was
conducting a special ride, the latter received information that the
accused in this case was possessing arrack near a muster shed of
a Tea estate. Upon getting the said information, as instructed by
the Assistant Excise Inspector, PW1, along with two other Excise
Guards, proceeded to the location and, when they reached near
the muster shed of a Tea estate, the accused was found walking
through the premises of the said shed carrying a plastic can in his
hand. Then he along with the Excise party, restrained the accused
and conducted an inspection of the plastic can in the presence of
two independent witnesses. The said plastic can was of five-liter
capacity, and two liters of arrack were found in it. Thereafter, he
had drawn a sample from the arrack and prepared a Mahazar.
Ext.P1 is the seizure mahazar prepared. The accused was
arrested on the spot.
12. The independent witnesses examined by the prosecution
to prove the alleged seizure are PW3 and PW4. However, during
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the 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 of whether the hostility shown by
the independent witnesses had any serious bearing 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.
13. 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. In the case at hand, the seizure mahazar prepared by
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PW1 is marked as Ext.P1. A perusal of Ext.P1 reveals that the
specimen impression of the sample is affixed in the seizure
mahazar. Ext.P4 property list, in terms of which the sample was
produced before the court, also bears the specimen impression of
the seal used in this case. Furthermore, a perusal of Ext.P4
property list reveals that the sample was produced before the
court on the next day of the detection itself.
14. The forwarding note, which is one of the crucial
documents as far as an Abkari case is concerned, also bears the
sample seal of the detecting officer. Therefore, it could be seen
that the chemical examiner got sufficient opportunity to compare
the seal found on the same with the seal found on the sample.
Notably, in the chemical analysis report, which is marked as
Ext.P11, it is specifically mentioned that the seals on the bottles
were intact and found tallied with the sample seal provided in the
forwarding note. Therefore, I find no reason to interfere with the
impugned judgment on the ground of any improper compliance of
formalities regarding seizure and sample.
15. However, 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 the safe custody until it reached the hands of
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the chemical examiner for analysis. Only when such a secure and
uninterrupted chain of custody is proved it can be held that the
sample analysed 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
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 witnesess to prove that there was a tamper-proof
dispatch of the sample from the court and an untampered transit
of the same to the laboratory. The same view has been taken by
this Court in Kumaran P. v. State of Kerala and Another
(2016 (5) KHC 632). However, in the case at hand, neither the
Thondi clerk nor the Excise Guard with whom the sample was
entrusted from the court was examined. The absence of such
examination enures to the benefit of the accused. Therefore, in
the facts and circumstances of the present case, I have no
hesitation in holding that the prosecution failed to prove the link
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evidence pertaining to the safe custody of the sample until it
reached the hands of the chemical examiner. The said lapse is
fatal to the prosecution, and hence, 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 the 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
sjb/07.07.2025
