Kerala High Court
Malathi vs State Of Kerala on 9 July, 2025
2025:KER:50190
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. 330 OF 2011
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.147 OF 2007
OF ADDITIONAL DISTRICT COURT (ADHOC) FAST TRACK COURT-I,
PATHANAMTHITTA ARISING OUT OF THE ORDER/JUDGMENT DATED IN CP
NO.29 OF 2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,
ADOOR
APPELLANT/ACCUSED:
MALATHI, W/O. KARUNAKARAN,
AMBADIYIL VEEDU, MUDIYOORKONAM MURI,
PANDALAM VILLAGE, ADOOR TALUK,
PATHANAMTHITTA, DISTRICT.
BY ADVS.
SHRI.AJITH MURALI
SRI.K.V.ANIL KUMAR
SRI.S.KRISHNALAL
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY SMT.N.S.HASNA MOL, PUBLIC PROSECUTOR
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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JUDGMENT
The sole accused in S.C.No.147/2007, on the file of
Additional District and Sessions Court(Adhoc -I), Pathanamthitta
has preferred this appeal challenging the judgment of conviction
and order of sentence passed against her 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
29.11.2005, at 06.45 p.m., the accused was found in possession
of 27 litres of arrack kept in four plastic cans for the purpose of
sale 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, Adoor.
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(Adhoc-I), Pathanamthitta,
for trial and disposal. On appearance of the accused before the
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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 P7. 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
for a period of four years and to pay a fine of Rs.1,00,000/-. In
default of payment of fine, the accused was ordered to undergo
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rigorous 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. It was further submitted that the copy of
the forwarding note, which is a crucial document in an Abkari
case, is not marked as 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 patent flaw in the
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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 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
Sub-Inspector of Police, Pandalam Police Station. When the
detecting officer was examined as PW5, 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. P1.
9. The independent witnesses cited by the prosecution to
prove the alleged seizure were examined as PW1 and PW2.
However, during the examination, both of them turned hostile to
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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 or
animosity towards the accused that would motivate her 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
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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 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.P1 seizure Mahazar, nothing is
mentioned about the procedures of sampling and sealing which
were adopted. During the examination before the court, PW5, 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. At this juncture, it is pertinent to note that the copy of
the forwarding note is seen not marked in evidence in this case.
The non-production of the forwarding note is undoubtedly fatal to
the prosecution. Only when the same is produced, the court can
verify whether it contains the specimen impression of the seal or
the sample seal that was meant to help the chemical examiner to
compare with the seal found on the sample. In the absence of the
copy of the forwarding note, it is impossible to enter into a
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conclusion that the sample collected from the spot is the very
same sample that was ultimately examined in the laboratory.
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 cannot be safely concluded 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 she is acquitted. Fine
amount, if any, has been deposited by the appellant/accused, the
same shall be refunded to her in accordance with law.
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
