Kerala High Court
Baby C.A vs State Of Kerala on 15 July, 2025
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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. 771 OF 2014
CRIME NO.71/2013 OF SULTHANBATHERY EXCISE RANGE OFFICE,
WAYANAD
AGAINST THE ORDER/JUDGMENT DATED 19.11.2013 IN CP
NO.31 OF 2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
SULTHANBATHERY ARISING OUT OF THE ORDER/JUDGMENT DATED
11.07.2014 IN SC NO.201 OF 2013 OF ADDITIONAL DISTRICT COURT
& SESSIONS COURT- II, KALPETTA
APPELLANT/COUNTER PETITIONER:
BABY C.A
AGED 47 YEARS
S/O.ANTONY, CHUNDATHU HOUSE, VADAKKANAD,
MNALADI, KIDANGANADU VILLAGE, SULTHANBATHERY.
BY ADVS.
SRI.S.M.PRASANTH
DR.K.BALAKRISHNAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.
SRI.ALEX M.THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING
14.07.2025, THE COURT ON 14.07.2025 THE FOLLOWING:
Crl.A.No. 771 of 2014
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JUDGMENT
The sole accused in S.C.No.201/2013, on the file of the
Additional Sessions Court-II, Kalpetta 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 13.04.2013,
at about 7.25 p.m., in the courtyard of the house bearing No.II/98
of Noolpuzha Grama Panchayatat Vadakkanad, the accused was
found in possession of Indian-made foreign liquor meant for sale
in Karnataka State only and engaged in the sale of the same in
contravention of the provisions of the Abkari Act and thereby
committed an offence punishable under Section Sections 55(a),
55(i), and 58 of the Abkari Act.
3. Upon conclusion of the investigation, the final report was
laid before the Judicial First Class Magistrate Court-I,
Sultanbathery. 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, Wayanad, under Section 209 of Cr.PC.
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4. The learned Sessions Judge, having taken cognizance of
the offence, made over the case to the Additional Sessions
Court-II, Kalpetta, for trial and disposal. On the appearance of the
accused, 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 the
offence punishable under Section 55(a) and 55(i) of the Abkari
Act. When the charge was read over and explained to the
accused, he pleaded not guilty and claimed to be tried.
5. During the trial, from the side of the prosecution,
altogether eight witnesses were examined as PW1 to PW8 and
marked Exts. P1 to P15(a). MO1 series 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. 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., he was called upon to enter on his defence and adduce
any evidence that he may have in support thereof. However, no
evidence was adduced from the side of the accused.
6. After trial, the accused was found guilty of the offence
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punishable under section 55(a) of the Abkari Act, and he was
convicted and sentenced to undergo simple imprisonment for one
year and to pay a fine of Rs.1,00,000/-. In default of payment of
the fine, the accused was ordered to undergo simple
imprisonment for six months. Assailing the said judgment of
conviction and the order of sentence passed, the present appeal
has been preferred.
7. I heard Sri.S.M.Prasanth, the learned counsel for the
appellant, and Sri.Alex M.Thombra, the learned Senior Public
Prosecutor.
8. The learned counsel for the appellant would submit that
the trial court failed to appreciate the facts and evidence brought
on record in this case in its proper perspective and arrived at a
conclusion of guilt hastily and erroneously. According to the
counsel, the accused was implicated in this case based on some
surmisers and conjectures. It was contended that the procedures
relating to seizure and sampling were not done in a foolproof
manner, leaving room for tampering. The learned counsel further
submitted that the hostility shown by the independent witnesses
to the prosecution case is fatal, especially when the seizure and
sampling procedures were not in a tamper-proof condition.
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According to the counsel, it is unsafe to act upon the solitary
evidence of the detecting officer to sustain a conviction in this
case. The counsel urged that the prosecution failed to establish
sufficient link evidence to show that the sample allegedly drawn
from the spot of detection is the very same sample that reached
the chemical examiner's laboratory for analysis. It is further
pointed out that the delay in producing the sample before the
court will certainly give room for tampering, and hence, the said
delay is fatal to the prosecution.
9. In response, the learned Public Prosecutor would contend
that, to eliminate any possibility of future allegations of
manipulation or tampering, all the procedural formalities were
scrupulously followed in this case. According to the learned Public
Prosecutor, the sample seal finds a place in crucial documents like
seizure mahazar, property list, forwarding note, etc., and
therefore, there is no reason to doubt that the sample drawn at
the time of detection is the very same sample that reached the
hands of the chemical examiner for analysis.
10. A perusal of the records reveals that to bring home the
guilt of the accused, the prosecution mainly relies on the evidence
of the detecting officer and the documentary evidence produced
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in this case. This case was detected by the Preventive Officer,
District Special Squad, Wayanad, on 13.04.2013. When the
detecting officer was examined as PW1, he narrated the entire
sequence of events leading to the detection of the contraband and
its seizure procedures.
11. The independent witnesses examined by the prosecution
to prove the alleged seizure are PW3 and PW4. However, during
the examination, both of them turned hostile to the prosecution
by deposing that they did not witness the incident in this case.
While considering the question of whether the hostility shown by
the independent witnesses had any serious bearing 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. 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 particularly when 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.
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12. 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
tampering. In the case at hand, the seizure mahazar prepared by
PW1 is marked as Ext.P4. A perusal of Ext.P4 reveals that the
specimen impression of the sample is affixed in the seizure
mahazar. Ext.P9 property list, in terms of which the sample was
produced before the court, also bears the specimen impression of
the seal used in this case.
13. The forwarding note, which is one of the crucial
documents as far as an Abkari case is concerned, also bears the
sample seal of the detecting officer. Therefore, it could be seen
that the chemical examiner got sufficient opportunity to compare
the seal found on the same with the seal found on the sample.
Notably, in the chemical analysis report, which is marked as
Ext.P12, it is specifically mentioned that the seals on the bottles
were intact and found to tally with the sample seal provided in the
forwarding note. Therefore, I find no reason to interfere with the
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impugned judgment on the ground of any improper compliance of
formalities regarding seizure and sampling.
14. However, 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 the 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 analysed is the very same one drawn from the contraband
allegedly seized from the accused. Keeping in mind the above
while reverting to the case at hand, it can be seen that in Ext.P10
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 witnesess to prove that there was a tamper-proof
dispatch of the sample from the court and an untampered transit
of the same to the laboratory. 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
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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 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.
15. However, as revealed from the property list, which is
marked as Ext.P9, the sample allegedly drawn from the liquor
seized from the possession of the accused was produced before
the court only on 18.04.2013. Virtually, there is a delay of 5 days
in producing the sample before the court. However, no
explanation whatsoever has been offered from the side of
prosecution for the said delay. The unexplained delay in producing
the sample, as well as the residue of the liquor before the court,
is certainly fatal to the prosecution. Particularly when there is no
evidence to show that the sample was in safe custody till the
same was produced before the court. Delay in producing the
sample before the court will leave room for allegations of
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manipulation and tampering. Therefore, I have no hesitation in
holding that the accused is entitled to get an order of acquittal on
the said ground as well.
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 the 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
