Kerala High Court
K.G. Rajan vs State Of Kerala on 10 July, 2025
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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. 418 OF 2014
CRIME NO.33/2007 OF Kalpetta Excise Range Office, Wayanad
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.223 OF 2010
OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II & RENT
CONTROL APPELLATE AUTHORITY, KALPETTA
APPELLANT/ACCUSED:
K.G. RAJAN, S/O. GOVINDAN, AGED 56 YEARS,
CHERIYA NARIPPARA COLONY, VARAMPATTA P.O,
PADINHARATHARA, WYNAD, KALPETTA - 673 122.
BY ADV SRI.A.C.DEVY
RESPONDENT/STATE:
THE STATE OF KERALA REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, KOCHI -682 031.
BY SMT. N.S. HASNA MOL, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
08.07.2025, THE COURT ON 10.07.2025 DELIVERED THE FOLLOWING:
CRL.A. No. 418 of 2014
:2:
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JUDGMENT
The 1st accused in S.C.No.223/2010, on the file of
Additional Sessions Court-II, Kalpetta, Wayanad, has preferred
this appeal challenging the judgment of conviction and the order
of sentence passed against him for the offence punishable under
Section 55(g) of the Abkari Act.
2. The prosecution allegation, in brief, is that, on
12.09.2007, at 12.30 p.m., inside the house of the 2nd accused
situated at Cheriyanarippara Colony, at Aalakkandy, the first and
second accused were found in possession of 76 litres of wash, and
utensils for brewing arrack in contravention of the provisions of
the Abkari Act and thereby committed an offence punishable
under Section 55(g) of the Abkari Act.
3. Upon completion of the investigation, the final report
was laid before the Judicial First Class Magistrate Court-II,
Mananthavady. 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, Wayanad, under Section 209 of Cr.PC. The
learned Session Judge, having taken cognizance of the offence
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made over the case to the Additional Sessions Court-II, Kalpetta,
for trial and disposal. While the matter was pending before the
trial court, the second accused was reported dead and the charge
against him was abated. Thereafter, 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 first accused for an offence punishable under Section
55(g) of the Abkari Act. When the charge was read over and
explained to the 1st 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 seven witnesses as
PW1 to PW7 and marked Exts.P1 to P10. 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. From the side of the accused, no
evidence whatsoever was produced.
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5. After trial, the accused was found guilty of the offence
punishable under section 55(g) of the Abkari Act, and he was
convicted and sentenced to undergo rigorous imprisonment for
one year 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 surmises and conjectures. According to the counsel in
the case at hand, there is absolutely no material to show that the
sample of the wash 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
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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 records 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, Kalpetta, on 12.09.2007. When
the detecting officer was examined as PW1, he narrated the entire
sequence of events relating to the detection of the contraband
and its seizure procedures. The seizure Mahazar prepared
contemporaries with the detection of the contraband was marked
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as Ext. P4.
9. The independent witness cited by the prosecution to
prove the alleged seizure was examined as PW6. However, during
examination, PW6 turned hostile to the prosecution by deposing
that he did not witness the incident in this case. While considering
the question whether the hostility shown by the independent
witness 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
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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.P4 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 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.P4 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. Therefore, the
failure on the part of the detecting officer to affix the sample seal
or include its specimen impression in Ext.P4 mahazar is fatal to
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the prosecution case, leaving ample room for allegations of
tampering and it creates doubt on whether the sample reached
the court is in fact the same sample that was drawn from the
alleged contraband. In the above circumstances, it is found that
the prosecution has failed to prove the case against the accused
beyond a reasonable doubt.
12. 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 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 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 55(g)
of the Abkari Act is set aside and he is acquitted. Fine amount, if
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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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