Kerala High Court
Eldhose vs State Of Kerala on 11 July, 2025
CRL.A. No. 1073 OF 2014 1 2025:KER:51064
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. 1073 OF 2014
AGAINST THE JUDGMENT DATED 09.10.2014 IN SC NO.419
OF 2013 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -
VII, ERNAKULAM
APPELLANTS/ACCUSED 1 AND 2:
1 ELDHOSE,
AGED 49 YEARS,
S/O.VARGHESE, KOTTAPPURAM HOUSE,
CHOORAMUDIKARA, KOMBANADU
2 EBY ELDHO,
AGED 21 YEARS,
S/O.ELDHO, KOTTAPPURAM HOUSE,
CHOORAMUDIKARA, KOMBANADU.
BY ADVS.
SRI.V.JOHN SEBASTIAN RALPH
SHRI.BIMAL PRASAD
SRI.K.J.JOSEPH (ERNAKULAM)
SMT.PREETHY KARUNAKARAN
SMT.SANJANA R.NAIR
SRI.JOHN THOMAS V
CRL.A. No. 1073 OF 2014 2 2025:KER:51064
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA AT ERNAKULAM, COCHIN 31
BY ADV.SRI.ALEX M.THOMBRA -PP
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. 1073 OF 2014 3 2025:KER:51064
JUDGMENT
The accused Nos.1 and 2 in S.C.No.419/2013, on the
file of Additional Sessions Court-VII, Ernakulam, has
preferred this appeal challenging the judgment of conviction
and order of sentence passed against them for the offence
punishable under Section 8(2) r/w 8(1) of the Abkari Act. of
the Abkari Act.
2. The prosecution allegation in brief is that, on
30.09.2011 at 3.30 p.m., the accused Nos.1 and 2 were
found in possession of 17 litres of arrack in their residential
house named Kottapuram House bearing No.XIII/218(Old
No.II/299) of Vengoor Panchayat, 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
CRL.A. No. 1073 OF 2014 4 2025:KER:51064
report was laid before the Judicial First Class Magistrate
Court-I, Perumbavoor. 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, Ernakulam,
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-VII, Ernakulam for trial and
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 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, both of them pleaded not guilty and claimed to
be tried.
4. The prosecution, in its bid to prove the charge
CRL.A. No. 1073 OF 2014 5 2025:KER:51064
levelled against the accused, has altogether examined six
witnesses as PW1 to PW6, and marked Exts.P1 to P14. MO1
and MO2 were exhibited and identified. After the completion
of prosecution evidence, both the accused were questioned
under Section 313 Cr.P.C., during which they denied all the
incriminating materials brought out against them 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., they were called upon to enter on their defence and
adduce any evidence they may have in support thereof. But
no evidence, whatsoever, was adduced from the side of the
accused.
5. After trial, both the accused were found guilty of
the offence punishable under section 8(2) r/w 8(1) of the
Abkari Act, and they were convicted and sentenced to
undergo simple imprisonment for two years and to pay a fine
of Rs.1 Lakh each. In default of payment of the fine, the
CRL.A. No. 1073 OF 2014 6 2025:KER:51064
accused were 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 appellants and the
learned Public Prosecutor.
7. The learned counsel for the appellants submitted
that the accused are innocent of the allegations levelled
against them and they were falsely implicated in this case.
According to the counsel, the accused had no connection
whatsoever with the liquor allegedly seized in this case, and
they were implicated on the basis of surmises and
conjectures, and due to political reasons. According to the
counsel in the case at hand, there is absolutely no convincing
evidence to show that the sample that was analysed in the
laboratory is the very same one that was allegedly drawn
from the spot of detection. It is pointed out that in the
CRL.A. No. 1073 OF 2014 7 2025:KER:51064
Mahazar allegedly prepared contemporaneous with the
detection of the contraband, the sample seal or the specimen
impression of the seal used for sealing the sample does not
find a place. It was further submitted that the copy of the
forwarding note, which is a crucial document in an Abkari
case, was not marked in evidence in this case, and the same
is fatal to the prosecution. In short, the crux of the argument
of the learned counsel for the appellants is that there is a
patent flow 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 the hands of the chemical examiner for analysis is
one and same. Per contra, the learned Public Prosecutor
would contend that all the procedures regarding seizure and
sampling were scrupulously complied with in this case so as
not to leave any room for manipulations and tampering.
According to the learned Public prosecutor, the evidence of
CRL.A. No. 1073 OF 2014 8 2025:KER:51064
the detecting officer as well as the other official witnesses,
and the documentary evidence adduced in this case clearly
points towards the guilt of the accused, and hence no
interference is warranted.
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 Sub Inspector of Police,
Kuruppampady Police Station on 30.09.2011. When the
detecting officer was examined as PW6, 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. P5.
9. The independent witnesses cited by the
prosecution to prove the alleged seizure were examined as
CRL.A. No. 1073 OF 2014 9 2025:KER:51064
PW3 and PW4. However, during the examination, both of
them turned hostile to the prosecution by deposing that they
did not witness the detection of the contraband in 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 detecting officer as well as that of the
other official witnesses were convincing and reliable
particularly when there is nothing to indicate that the
detecting officer or other official witnesses bore any grudge or
animosity towards the accused that would motivate them to
falsely implicated the accused in a false case.
CRL.A. No. 1073 OF 2014 10 2025:KER:51064
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 a foolproof manner, thereby
ruling out any possibility of manipulation and tampering in
the future. Nevertheless, in the case at hand, a bare perusal
of Ext.P5 Mahazar reveals that neither the sample seal nor
the specimen impression of the seal allegedly affixed in the
sample does not finds a place in it. The absence of sample
seal or the specimen impression of the seal in the Mahazar is
certainly a circumstance to doubt the identity of the sample
drawn and the identity of the sample got analyzed in the
laboratory.
11. Likewise, in Ext.P5 Mahazar, the details of the seal
allegedly used in this case are not mentioned. Moreover,
CRL.A. No. 1073 OF 2014 11 2025:KER:51064
nothing is mentioned about the procedures of sampling and
sealing, which were adopted. During the examination before
the court, the detecting officer did not depose about the
nature of the seal used for sealing the sample, as well as the
residue of the contraband allegedly seized in this case.
12. At this juncture, it is pertinent to note that the
copy of the forwarding note, which is a crucial document as
far as an Abkari case is considered that is not marked as
evidence in this case. The non-production of the forwarding
note is undoubtedly fatal to the prosecution. Only when the
same is produced, the court could verify whether it bears the
specimen impression of the seal or the sample seal, so as to
help the chemical examiner to compare it with the seal found
on the sample. In the absence of a copy of the forwarding
note, it is impossible to conclude that the sample collected
from the contraband allegedly seized in this case is the very
same one ultimately examined by the chemical examiner.
CRL.A. No. 1073 OF 2014 12 2025:KER:51064
Therefore, I have no hesitation in holding that the
prosecution failed to prove the charge levelled 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
appellants/accused for the offence punishable under Section
8(2) r/w 8(1) of the Abkari Act is set aside and they are
acquitted. Fine amount, if any, has been deposited by the
appellants/accused, the same shall be refunded to them in
accordance with law.
Sd/-
JOBIN SEBASTIAN
JUDGE
rkr
