Kerala High Court
Krishnankutty vs State Of Kerala on 15 July, 2025
2025:KER:51969
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 15TH DAY OF JULY 2025 / 24TH ASHADHA, 1947
CRL.A NO. 387 OF 2011
AGAINST THE ORDER/JUDGMENT DATED 31.01.2011 IN SC
NO.30 OF 2005 OF ADDITIONAL DISTRICT COURT (ADHOC)-IV,
THIRUVANANTHAPURAM ARISING OUT OF THE ORDER/JUDGMENT DATED
IN CP NO.26 OF 2004 OF JUDICIAL FIRST CLASS MAGISTRATE
COURT-I, NEYYATTINKARA
APPELLANT/ACCUSED:
KRISHNANKUTTY
KANIKKAMTHALA PUTHEN VEEDU, ONAMKODE,
VENPAKAL DESOM, ATHIYANOOR VILLAGE,
THIRUVANANTHAPURAM.
BY ADV SRI.G.P.SHINOD
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR
AT THE HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.
SRI.ALEX M. THOMBRA, SENIOR GOVERNMENT PLEADER
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING
14.07.2025, THE COURT ON 15.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
The sole accused in S.C.No.30/2005, on the file of the
Additional District and Sessions Court-IV, Thiruvananthapuram,
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 04.07.2002
at 5.10 p.m., inside a plantain plantation situated on the
south-western side of a pond at Onamkode in Athiyannoor Village,
the accused was found in possession of 3 litres of arrack in a can
having a capacity of 5 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-I,
Neyyattinkara. 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, Thiruvananthapuram, under Section 209 of
Cr.PC. The learned Sessions Judge, having taken cognizance of
the offence, made over the case to the Additional Sessions
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Court-IV, Thiruvananthapuram 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 P7. MO1 and MO2 were
exhibited and identified. 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.
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
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was convicted and sentenced to undergo rigorous imprisonment
for six months and to pay a fine of Rs.1,00,000/-. 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 Senior 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
based on surmises and conjectures. The learned counsel
vehemently urged that the Assistant Sub-Inspector of Police who
detected the case, registered the crime and laid the occurrence
report, and the final report after conducting the entire
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 the counsel in the case at hand,
there is absolutely no material to show that the sample of the
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arrack that was 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, the sample seal or specimen
impression of the seal allegedly used is nowhere affixed. It was
further submitted that the copy of the forwarding note, which is a
crucial document in an Abkari case, is not marked in evidence in
this case, and the same is fatal to the prosecution. Per contra, the
learned Senior 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 Sub-Inspector of Police, Neyyattinkara, on 04.07.2002.
When the detecting officer was examined as PW4, he narrated the
entire sequence of events relating to the detection of the
contraband and its seizure procedures. The seizure Mahazar
prepared by PW4, contemporaneous with the detection of the
contraband, was marked as Ext.P1.
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9. Evidently, it was the Assistant Sub-Inspector of Police,
Neyyattinkara (PW4), who detected and registered the present
case against the accused and laid the final report in this case after
conducting the entire investigation. 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 on a final
report submitted by an incompetent officer and the subsequent
trial conducted are vitiated. Therefore, the accused is entitled to
be acquitted on the said sole ground.
10. Moreover, in the case at hand, PW1, the independent
witness examined by the prosecution to prove the detection of
this case turned hostile to the prosecution by deposing that he 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
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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.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 mahazar is certainly a circumstance to
doubt the identity of the sample drawn and the identity of the
sample that was analysed by the chemical examiner.
11. At this juncture, it is pertinent to note that the copy of
the forwarding note is seen not marked in 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 can
verify whether it contains the specimen impression of the seal or
the sample seal that was meant to help the chemical examiner to
compare with the seal found on the sample. In the absence of the
copy of the forwarding note, it is impossible to enter into a
conclusion that the sample collected from the spot is the very
same sample that was ultimately examined in the laboratory.
12. Therefore, I have no hesitation in holding that the
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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 cannot be safely concluded 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
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 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
ANS
