Kerala High Court
Shihabudheen vs State Of Kerala on 11 July, 2025
CRL.A. No. 495 OF 2014 1 2025:KER:51061
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 11TH DAY OF JULY 2025 / 20TH ASHADHA, 1947
CRL.A NO. 495 OF 2014
CRIME NO.31/2007 OF Sulthanbathery Excise Range Office,
Wayanad
AGAINST THE ORDER/JUDGMENT DATED 31.12.2011 IN CP
NO.28 OF 2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS
,SULTHANBATHERY ARISING OUT OF THE ORDER/JUDGMENT DATED
31.05.2014 IN SC NO.4 OF 2012 OF ADDITIONAL DISTRICT
COURT & SESSIONS COURT - II, KALPETTA
APPELLANT/ACCUSED:
SHIHABUDHEEN, AGED 33 YEARS
S/O UNNIMOIDEEN, PUTHOOTHARA HOUSE, CHETTIYARAMMAL
DESOM, NILAMBUR TALUK, WANDOOR VILLAGE, MALAPPURAM
BY ADVS.
SHRI.V.V.SURENDRAN
SRI.P.A.HARISH
RESPONDENTS/COMPLAINANT AND STATE:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM
2 THE EXCISE RANGE INSPECTOR
SULTHAN BATHERI RANGE, WAYANADU - 673 592.
By SRI.ALEX M.THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR
HEARING ON 10.07.2025, THE COURT ON 11.07.2025
DELIVERED THE FOLLOWING:
CRL.A. No. 495 OF 2014 2 2025:KER:51061
JUDGMENT
The sole accused in S.C.No.4/2012, on the file of
Additional Sessions Court-II, Kalpetta, Wayanad has
preferred this appeal challenging the judgment of conviction
and order of sentence passed against him for the offence
punishable under Section 55(a) of the Abkari Act.
2. The prosecution allegation in brief is that, on
31.05.2007, at 09.30 am., the accused was found in
possession of 460 litres of spirit concealed in a secret
chamber of the car bearing Registration No. KL-11D-8880,
transported from the State of Karnataka to Kerala, in
contravention of the provisions of the Abkari Act, and
thereby committed an offence punishable under Section
55(a) of the Abkari Act.
3. Upon conclusion of the investigation, the final
report was laid before the Judicial First Class Magistrate
Court-I, Sulthanbatheri. Being satisfied that the case is one
exclusively triable by a court of Session, the learned
CRL.A. No. 495 OF 2014 3 2025:KER:51061
Magistrate, after complying with all legal formalities,
committed the case to the Court of Session, Wayand, under
Section 209 of Cr.PC. The learned Sessions Judge, having
taken cognizance of the offence made over the case to the
Additional District Sessions Court-II, Kalpatta, for trial and
disposal. On appearance of the accused before the trial
court, 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 accused
for an offence punishable under Section 55(a) 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 nine
witnesses as PW1 to PW9, and marked Exts.P1 to P14. 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
CRL.A. No. 495 OF 2014 4 2025:KER:51061
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(a) of the Abkari Act,
and he was convicted and sentenced to undergo rigorous
imprisonment for five years and to pay a fine of Rs.5 Lakh.
In default of payment of the fine, the accused was ordered
to undergo simple 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
CRL.A. No. 495 OF 2014 5 2025:KER:51061
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 spirit 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 seizure Mahazar, 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 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 record reveals that, in order to
CRL.A. No. 495 OF 2014 6 2025:KER:51061
prove the charge levelled against the accused, the
prosecution mainly relies on the evidence of the detecting
officer and the documentary evidence adduced in this case.
This case was detected by the Excise Circle Inspector,
Kalpatta Range. When the detecting officer was examined as
PW1, he had narrated the entire sequence of events relating
to the detection of the contraband and its seizure
procedures. The seizure Mahazar prepared
contemporaneously with the detection of the contraband was
marked as Ext. P3.
9. The independent witnesses cited by the prosecution
to prove the alleged seizure were examined as PW3 and
PW4. However, during the examination, both of them
turned hostile to the prosecution. 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
CRL.A. No. 495 OF 2014 7 2025:KER:51061
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 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.P3 Mahazar reveals that
neither the sample seal nor the specimen impression of the
seal allegedly used by the detecting officer for sealing the
CRL.A. No. 495 OF 2014 8 2025:KER:51061
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.P3 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.
12. Moreover, in a case of this nature, it is the
bounden duty of the prosecution to show that the sample
drawn from the spot remained in safe custody until it
reached the hands of the chemical examiner for analysis.
Only when such a secure and uninterrupted chain of custody
is proved it can be held that the sample analyzed is the very
same one drawn from the contraband allegedly seized from
CRL.A. No. 495 OF 2014 9 2025:KER:51061
the accused. Keeping in mind the above while reverting to
the case at hand, it can be seen that in Ext.P13 forwarding
note, the name of the Excise Guard with whom the
contraband was entrusted from the court for producing
before the chemical examiner's laboratory does not find a
place. When the space designated in the forwarding note for
recording the name of the Excise Guard remains blank, it is
incumbent on the part of the prosecution to examine the
Thondi clerk as well as the Excise Guard as a witness to
prove that there was a tamper-proof despatch of the sample
from the court and an untampered transit of the same to the
laborotoray. The same view has been taken by this Court in
Kumaran P. v. State of Kerala and Another (2016 (5)
KHC 632). However, in the case at hand, neither the Thondi
clerk nor the Excise Guard with whom the sample was
entrusted from the court was examined. The absence of
such examination enures to the benefit of the accused.
Therefore, in the facts and circumstances of the present
case, I have no hesitation in holding that the prosecution
CRL.A. No. 495 OF 2014 10 2025:KER:51061
failed to prove the link evidence pertaining to the safe
custody of the sample until it reached the hands of the
chemical examiner. The said lapse is fatal to the
prosecution, and hence, it is liable to be held that the
prosecution failed to prove the charge 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(a) 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
rkr
