Kerala High Court
Sivankutty vs The State Of Kerala on 10 July, 2025
2025:KER:50569
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. 472 OF 2014
AGAINST THE ORDER/JUDGMENT DATED IN CP NO.178 OF 2010
OF JUDICIAL MAGISTRATE OF FIRST CLASS, ADOOR ARISING OUT OF
THE ORDER/JUDGMENT DATED 09.05.2014 IN SC NO.123 OF 2012 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT - II/RENT CONTROL
APPELLATE AUTHORITY, PATHANAMTHITTA / II ADDL.M.A.C.T.
APPELLANT/ACCUSED:
SIVANKUTTY, AGED 60 YEARS, S/O.MADHAVAN,
VATTAKKAVIL PUTHEN VEETIL, PATHRIICKAL KARA,
PATHANAPURAM VILLAGE, PATHANAPURAM TALUK.
BY ADVS.
SRI.K.SIJU
SHRI.S.ABHILASH
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA THROUGH THE EXCISE INSPECTOR,
ADOOR EXCISE RANGE 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
09.07.2025, THE COURT ON 10.07.2025 DELIVERED THE FOLLOWING:
CRL.A NO. 472 of 2014
:2:
2025:KER:50569
JUDGMENT
The sole accused in S.C.No.123/2012, on the file of the
Additional District and Sessions Court-II, Pathanamthitta, has
preferred this appeal challenging the judgment of conviction and
the 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 30.06.2007,
at 1.30 p.m., near to the house of one Ibrahim situated at
Manakkattupuzha, the accused was found in possession of 20 litres
of arrack in a can having a capacity of 35 litres, 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 completion 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-II, Pathanamthitta for trial
CRL.A NO. 472 of 2014
:3:
2025:KER:50569
and disposal. On 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 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 three witnesses as
PW1 to PW3, and marked Exts.P1 to P10. MO1 was exhibited and
identified. One witness was examined as a court witness as CW1
and marked Ext.C1. 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 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, one witness was examined
as DW1.
CRL.A NO. 472 of 2014
:4:
2025:KER:50569
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 three 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 further period of 15 days. 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. The learned counsel
vehemently urged that the Assistant Excise Officer who registered
the case and conducted a major part of the investigation was not
an Abkari officer at the time of registration of this case, and
hence, the entire proceedings in this case, including trial, are
CRL.A NO. 472 of 2014
:5:
2025:KER:50569
vitiated. 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 allegedly seized in this case. It is pointed out
that, in the Mahazar as well as in the forwarding note, 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 guarantee that the sample produced before the court
as well as reached in the chemical examiner's 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 followed in this case, and hence the impugned
judgment 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
CRL.A NO. 472 of 2014
:6:
2025:KER:50569
Preventive Officer attached to Excise Range, Adoor on 30.06.2007.
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 contemporaneous with the detection of the contraband
was marked as Ext. P1.
9. The evidence of the Preventive Officer reveals that after
completing the procedures of seizure and sampling, he produced
the accused before the Assistant Excise Inspector, Excise Range,
Adoor. The sample, the residue of the contraband, other thondi
articles, and the records prepared by him were also produced
before the Assistant Excise Inspector. Evidently, it was the
Assistant Excise Inspector (PW2) who registered the present case
against the accused and conducted the major part of the
investigation in this case. It was PW2 who prepared the property
list and produced the thondi articles before the court along with
the accused. The forwarding note was also prepared by him. He
interrogated the witnesses and recorded their statements.
Undisputedly, an Assistant Excise Inspector was not an Abkari
Officer as defined under the Abkari Act during the period of
CRL.A NO. 472 of 2014
:7:
2025:KER:50569
detection of this case, and hence it is liable to be held that he
registered this case without jurisdiction. Hence, the cognizance
taken and the trial conducted in this case stand vitiated. The
Assistant Inspectors were notified as Abkari officers by the
Government vide its notification dated 08.05.2009. Therefore, the
present case registered by the Assistant Excise Inspector before
the said date was without any jurisdiction.
10. I am not unmindful of the fact that when the Assistant
Excise Inspector who registered this case was examined as PW2,
he deposed that during the time when he registered the present
case and conducted the investigation, he was in charge of the
Excise Inspector, Adoor. However, no documentary evidence
whatsoever has been produced from the side of the prosecution to
substantiate that PW2, the Assistant Excise Inspector, was in
charge of the Excise Inspector, Adoor at the time of the detection
of this case. More pertinently, when the Excise Inspector, Adoor,
who laid the final report in this case, was examined as PW3, he did
not have a case that PW2, the Assistant Excise Inspector, was
holding the charge of the Excise Inspector at the time of the
registration of this case.
CRL.A NO. 472 of 2014
:8:
2025:KER:50569
11. Moreover, in the case at hand, no independent witnesses
were examined to prove the detention. I am not oblivious that the
court can act upon the evidence of official witnesses to record a
conviction in an Abkari Act if their evidence is convincing and
reliable. 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 specimen
impression of the seal allegedly used by the detecting officer for
sealing the sample does find a place in it. The absence of a
sample seal or specimen impression of the seal in the seizure is
certainly a circumstance to doubt the identity of the sample drawn
and the identity of the sample got analysed by the chemical
examiner.
12. Moreover, a perusal of the forwarding note, which was
marked as Ext.P6, the sample seal or specimen impression of the
CRL.A NO. 472 of 2014
:9:
2025:KER:50569
seal does not find a place therein. The purpose of affixing the seal
in the forwarding note is to enable the chemical examiner to
compare the seal found on the sample with the specimen seal or
sample seal provided in the forwarding note. Only upon such
comparison, the chemical examiner can confirm that the sample
received for analysis is the same one forwarded from the court. In
Rajamma v. State of Kerala [2014 (1) KLT 506], this Court held
that in the absence of convincing evidence as to the production of
the specimen impression of the seal or the sample seal to the
chemical examiner, no evidentiary value can be attributed to the
chemical analysis report.
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 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. Moreover, as already
discussed, since the case was registered and investigated by an
Assistant Excise Inspector who was not vested with the power
CRL.A NO. 472 of 2014
:10:
2025:KER:50569
under the Abkari Act to perform such functions, the subsequent
proceedings in this case, including trial, are vitiated. Hence, the
accused is liable to be acquitted.
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
ncd
