Kerala High Court

Pavadas @ Das @ George vs State Of Kerala on 10 July, 2025

                                                    2025:KER:50572

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

         THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN

  THURSDAY, THE 10TH DAY OF JULY 2025 / 19TH ASHADHA, 1947

                       CRL.A NO. 150 OF 2014

     AGAINST     THE   ORDER/JUDGMENT   DATED   25.01.2014   IN   SC

NO.314 OF 2013 OF III ADDITIONAL DISTRICT & SESSIONS COURT,

THODUPUZHA

APPELLANT/ACCUSED:

     PAVADAS @ DAS @ GEORGE
     AGED 65 YEARS
     S/O.CHELLAYYA, ASARIPARAMBIL HOUSE, KOLLAPARA COLONY BHAGAM,
     KURISUPARA KARA, ANAVIRATTY VILLAGE, IDUKKI DISTRICT.

     BY ADV SRI.LATHEESH SEBASTIAN

RESPONDENT/COMPLAINANT:

     STATE OF KERALA
     REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION
     HIGH COURT OF KERALA, ERNAKULAM - 682 031

     BY ADV.
     SMT.N.S.HASNA MOL, PUBLIC PROSECUTOR


THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING ON
09.07.2025, THE COURT ON 10.07.2025 DELIVERED THE FOLLOWING:
 CRL.A. No. 150 OF 2014
                                  :2:
                                                            2025:KER:50572

                                  JUDGMENT

The sole accused in S.C.No.314/2013, on the file of

Additional Sessions Court-III, Thodupuzha, has preferred this

appeal challenging the judgment of conviction and order of

sentence passed against him for the offence punishable under

Section 55(i) of the Abkari Act.

2. The prosecution allegation in brief is that, on

25.08.2012, at 7.10 p.m., on the side of the Kurisupara-Adimaly

public road, the accused was found in possession of Indian-made

liquor for the purpose of sale in contravention of the provisions of

the Abkari Act, and thereby committed an offence punishable

under Section 55(a) & 55(i) of the Abkari Act.

3. Upon completion of the investigation, the final report

was laid before the Judicial First Class Magistrate Court, Adimaly.

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. The learned Sessions

Judge, having taken cognizance of the offence, made over the

case to the Additional Sessions Court-III, Thodupuzha for trial and CRL.A. No. 150 OF 2014 :3:

2025:KER:50572

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 a perusal of the records,

framed a written charge against the accused for an offence

punishable under Section 55(i) 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 four witnesses as

PW1 to PW4, and marked Exts.P1 to P10 and MO1 to MO5 were

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 in evidence. 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 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(i) of the Abkari Act, and he was CRL.A. No. 150 OF 2014 :4:

2025:KER:50572

convicted and sentenced to undergo simple imprisonment for one

year 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

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

he was falsely implicated in this case. According to the counsel,

the accused had no connection whatsoever with the liquor

allegedly seized in this case, and he was implicated on the basis

of surmises and conjectures. The learned counsel submitted that

if at all the prosecution case is believed, such an offence under

Section 55(i) of the Abkari Act would not attract, as there is no

evidence for sale. It was urged that the ingredients to attract an

offence under Section 55(i) of the Abkari Act are lacking in this

case. The learned counsel also assailed the seizure and the

sampling of the contraband done in this case on the grounds of CRL.A. No. 150 OF 2014 :5:

2025:KER:50572

noncompliance with formalities while carrying out those

procedures. According to him, the seizure and sampling

procedures were not done in a foolproof manner without leaving

room for tampering and manipulations. The learned counsel urged

that there is inordinate, unexplained delay in producing the

sample as well as the residue of the liquor before the court, and

hence, there is every possibility of tampering. The counsel also

highlighted the delay that occurred in producing the sample

before the chemical examiner's laboratory after the same was

dispatched with a police constable from the court. According to

him, the link evidence regarding the safe custody of the

contraband is snapped in this case, and hence it could not be said

that the sample collected from the spot of detection is the very

same one that reached the hands of the chemical examiner for

analysis.

8. Per contra, the learned Public Prosecutor would submit

that all the procedural formalities to rule out allegations of

manipulations and tampering in the future are scrupulously

complied with in this case. According to the learned Public

Prosecutor, the Mahazar, which was prepared contemporaneously CRL.A. No. 150 OF 2014 :6:

2025:KER:50572

with the detection of the contraband, bears the specimen

impression of the seal used for sealing the sample. Moreover, it

was pointed out that in the forwarding note as well as in the

property list, the sample seal finds a place, and the contention of

the learned counsel for the appellant, sticking on procedural

irregularities, is baseless.

9. A perusal of the record reveals that, 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, Adimaly, on 25.08.2012. When the

detecting officer was examined as PW4, he narrated the entire

sequence of events relating to the detection of the liquor and its

seizure procedures. The seizure Mahazar prepared

contemporaneous with the detection of the contraband was

marked as Ext. P1.

10. 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 CRL.A. No. 150 OF 2014 :7:

2025:KER:50572

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 or police officials

bore any grudge or animosity towards the accused that would

motivate him to falsely implicate the accused in a criminal case

like this nature.

11. However, when a court is called upon to rely solely on

the evidence of the official witnesses, 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 CRL.A. No. 150 OF 2014 :8:

2025:KER:50572

tampering. In the case at hand, Ext.P1 Mahazar, the specimen

impression of the seal used for sealing the sample is seen affixed.

Similarly, the specimen impression of the seal finds a place in the

forwarding note as well. Therefore, prima facie, it could not be

said that there are serious lapses on the part of the investigating

officer in drawing the sample and sealing it.

12. However, as revealed from the property list, which is

marked as Ext.P5, the sample allegedly drawn from the liquor

seized from the possession of the accused was produced before

the court only on 05.09.2012. Virtually, there is a delay of 11

days in producing the sample before the court. Though the said

delay is a long one, no explanation whatsoever has been offered

from the side of prosecution for the said delay. The unexplained

delay in producing the sample, as well as the residue of the liquor

before the court, is certainly fatal to the prosecution. Particularly

when there is no evidence to show that the sample was in safe

custody till the same was produced before the court. Delay in

producing the sample before the court will leave room for

allegations of manipulation and tampering. Therefore, I have no

hesitation in holding that the accused is entitled to get an order of CRL.A. No. 150 OF 2014 :9:

2025:KER:50572

acquittal on the said sole ground.

13. Another crucial aspect pointed out by the learned

counsel for the appellant is that there is a delay in producing

contraband before the chemical examiner's laboratory after the

same had been entrusted to a police constable from the court. A

perusal of the covering letter, which forms part of Ext.P6, shows

that the sample was entrusted with a police constable for

producing before the chemical examiner's laboratory on

05.09.2012. However, the forensic science laboratory report,

which is marked as Ext.P10, shows that the sample reached the

hands of the chemical examiner only on 11.09.2012. The delay in

producing the sample before the chemical examiner's laboratory

after the same had been entrusted to a police constable also

raises suspicion of manipulations and tampering. Given the same,

it can be seen that the link evidence regarding safe custody is

snapped in this case. Therefore, it is liable to be held that there is

no guarantee that the sample drawn from the liquor allegedly

seized from the accused is the very same one that reached the

hands of the chemical examiner for analysis.

In the result, the appeal is allowed and the judgment of CRL.A. No. 150 OF 2014 :10:

2025:KER:50572

conviction and the order of sentence passed against the

appellant/accused for the offence punishable under Section 55(i)

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/-