Kerala High Court
Wilson vs State Of Kerala Rep.By The P.P on 10 July, 2025
CRL.A NO. 257 of 2010
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2025:KER:50570
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. 257 OF 2010
AGAINST THE ORDER/JUDGMENT DATED 11.01.2010 IN SC
NO.652 OF 2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II,
PATHANAMTHITTA
APPELLANT/ACCUSED:
WILSON, S/O. RAMAYYA NADAR,
LAYAM NO.45, HARRISON PLANTATION EAST DIVISION,
KONNI, ARUVAPPULAM VILLAGE,, KOZHENCHERRY TALUK,
PATHANAMTHITTA.
BY ADV SRI.SAJJU.S
RESPONDENT:
STATE OF KERALA REP.BY THE THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
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:
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JUDGMENT
The sole accused in S.C.No.652/2006, on the file of the
Additional District and Sessions Court (Adhoc-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 10.07.2003
at 11.15 a.m., at the road in front of layam No.24, in an estate
near Puthukkad Pattolam junction, the accused was found in
possession of 10 litres of arrack in a can having a capacity of 10
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-II,
Pathanamthitta. 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,
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Pathanamthitta for trial 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 five witnesses as
PW1 to PW5, and marked Exts.P1 to P8. MO1 was exhibited and
identified. A contradiction in the 161 statement of one of the
prosecution witnesses was marked as Ext.D1. 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, no evidence was adduced.
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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 two 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 six 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. The learned counsel
vehemently urged that the Assistant Excise Officer who detected
the case, registered the crime and occurrence report and
conducted the major part of the investigation in this case was not
an Abkari officer at the relevant time, and hence, the entire
proceedings in this case, including trial, are vitiated. According to
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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
Assistant Excise Inspector, Excise Range, Konni on 10.07.2003.
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When the detecting officer was examined as PW2, he narrated the
entire sequence of events relating to the detection of the
contraband and its seizure procedures. The seizure Mahazar
prepared by PW1, contemporaneous with the detection of the
contraband, was marked as Ext. P3.
9. Evidently, it was the Assistant Excise Inspector (PW1)
who detected and registered the present case against the accused
and conducted the major part of the investigation in this case. It
was he 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 detection of this case, and hence it is
liable to be held that this case was detected and registered by
him without jurisdiction. Hence, the cognizance taken and the trial
conducted in this case are also vitiated. The Assistant Inspectors
were notified as Abkari officers by the Government vide
notification SRO No.361/2009 dated 08.05.2009. In this case,
the offence was detected on 10.07.2003. Therefore, the
abovesaid notification will not legalise the detection, arrest, and
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seizure made by PW1, the Assistant Excise Inspector. The crime
and occurrence report registered by an incompetent officer will
vitiate the prosecution.
10. Moreover, in the case at hand, both the independent
witnesses examined by the prosecution to prove the detection of
this case turned hostile to the prosecution by deposing that they
did not witness the incident in this case. I am not oblivious that
the court can act upon the evidence of official witnesses to sustain
a conviction in an Abkari case if their evidence is convincing and
reliable. However, when a court is called upon to rely solely on
the evidence of the detecting officer and other 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 tampering. Nevertheless, in the case at
hand, a bare perusal of Ext.P3 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
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identity of the sample drawn and the identity of the sample that
was analysed by the chemical examiner.
11. Moreover, a perusal of the forwarding note, which was
marked as Ext.P7, the sample seal or specimen impression of the
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.
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
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examined in the chemical examiner's laboratory. The upshot of
the above discussion is that since the case was detected and
registered by an Assistant Excise Inspector who was not vested
with the power 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
