Suresh vs State Of Kerala
2025 Latest Caselaw 345 Ker

Kerala High Court

Suresh vs State Of Kerala on 5 June, 2025

                                                            2025:KER:39786

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

        THURSDAY, THE 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947

                          CRL.A NO. 2959 OF 2008

AGAINST THE JUDGMENT DATED 16.12.2008 IN S.C. NO.422 OF 2007 ON THE FILES

OF THE ADDITIONAL SESSIONS COURT, THRISSUR (FAST TRACK COURT NO.II-ADHOC)


APPELLANT/ACCUSED:

           SURESH
           S/O VADAKKUT VEETTIL
           LAKSHMIKUTY, MURIYAD, MUKUNDAPURAM.


           BY ADV SRI.P.K.MOHANAN(PALAKKAD)


RESPONDENT/COMPLAINANT:

           STATE OF KERALA
           REPRESENTED BY PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.



     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.06.2025, THE
COURT ON 05.06.2025 DELIVERED THE FOLLOWING:
                                                             2025:KER:39786

Crl.A. No. 2959 of 2008
                                     2




                              JUDGMENT

Dated this the 5th day of June, 2025

The sole accused in S.C. No.422/2007 on the files of

the Additional Sessions Court, Thrissur, has filed this appeal

under Section 374(2) of the Code of Criminal Procedure, 1973,

challenging the conviction and sentence imposed by the

Additional Sessions Judge, as per the judgment dated

16.12.2008. The State of Kerala, represented by the Public

Prosecutor is arrayed as the sole respondent herein.

2. Heard the learned counsel for the appellant as well

as the learned Public Prosecutor, in detail. Perused the verdict

under challenge and the records of the trial court.

3. In a nutshell, the prosecution case is that, on

21.07.2004 while the Excise Inspector and Party were on

patrol duty at Muriyad-Kappara Road, the accused was found

in possession of can with 5 Litre of arrack in front of the

house of one Raghavan Nair, against the prohibitions

contained in the Kerala Abkari Act and thereby committed

the offence punishable under Section 8(1) read with 8(2) of

the Kerala Abkari Act. The case was charge sheeted by the 2025:KER:39786

Excise Inspector, Irinjalakuda Range Office.

4. After, framing charge for the offence under

Sections 8(1) read with 8(2) of the Kerala Abkari Act, the

trial court recorded evidence and tried the matter. PWs 1 to

6 were examined and Exts.P1 to P13 and MO1 were marked

on the side of the prosecution. Even though, the accused

was given opportunity to adduce defence evidence after

questioning him under Section 313(1)(b) of Cr.P.C, he did not

opt to adduce any defence evidence.

5. On appreciation of evidence, the trial court found

that the appellant/accused is guilty for the offence

punishable under Section 8(1) read with 8(2) of the Kerala

Abkari Act and accordingly he was convicted and sentenced

to undergo simple imprisonment for a period of three years

and to pay a fine of Rs.1,00,000/-. In default of payment of

fine, the accused was sentenced to undergo simple

imprisonment for a period of one year more. Set off was

allowed to the accused, as per law.

6. While assailing the conviction and sentence

imposed by the trial court, the learned counsel for the

appellant/accused would submit that there is patent 2025:KER:39786

procedural irregularity in this matter, which would go to the

root of the case, so that the accused would deserve

acquittal. It is pointed out by the learned counsel for the

appellant/accused that, as per the decision of this Court in

Vijayan @ Puthoor Vijayan v. State of Kerala reported in

[2021 (5) KHC 347 : 2021 (2) KLD 483 : 2021 KHC

OnLine 595 : 2021 (5) KLT 321 : 2021 (4) KLJ 224 :

2021 KER 34088], this Court analyzed the steps to be

followed by the Officer collecting the sample, Thondy Clerk,

who is authorized to receive the thondy and also the

measures to be ensured by the Chemical Examiner to ensure

that sample collected from the contraband seized safely

reached the hands of the Chemical Examiner for

examination. According to the learned counsel for the

appellant/accused, in the instant case, Condition No.ii to be

followed by the officer collecting the sample as held in

Vijayan @ Puthoor Vijayan's case (supra) is not followed

or complied. Since there is reluctance on the part of the

officer in describing the nature of the specimen seal in the

mahazar and affixing the specimen seal in the mahazar,

there is nothing to ensure that the sample sent for chemical 2025:KER:39786

examination is the one recovered from the

appellant/accused. Therefore, the appellant/accused would

get the benefit of doubt and thereby the verdict of the trial

court is liable to be reversed.

7. Although, the learned Public Prosecutor opposed

interference in the verdict of the trial court, he is not able to

justify the laxity pointed out by the learned counsel for the

appellant/accused.

8. In view of the rival submissions, the questions

arise for consideration are:

1. Whether the trial court is justified in finding that the appellant/accused committed the offence punishable under Section 8(1) read with 8(2) of the Abkari Act?

2. Whether the trial court verdict requires interference?

3. Reliefs to be ordered?

9. In Vijayan @ Puthoor Vijayan's case (supra),

this Court enumerated the steps to be followed by the officer

collecting the sample, steps to be followed by Thondy Clerk,

who is authorized to receive the thondy and the measures to

be ensured by the Chemical Examiner. The same read as 2025:KER:39786

under:

"Steps to be followed by the officer collecting the sample:

(i) Collection of sample from the alleged contraband by the Officer concerned shall be transparent eschewing possibility of tampering the sample in any manner;

(ii) While collecting sample, the officer shall describe the nature of the specimen seal in the mahazar and the specimen seal shall be affixed on the mahazar, on the sample bottle, bottle containing the remaining part of contraband and the forwarding note;

(iii) The sample so collected shall be produced before the jurisdictional Magistrate without any delay and the delay if any, shall be properly explained;

(iv) Specimen seal affixed on the sample should be produced before the court along with the contraband for comparison;

(v) The said officer shall depose about compliance of the above before the court while giving evidence.

Steps to be followed by the Thondy Clerk who is authorised to receive the thondy:

(i) The Thondy Clerk shall verify the specimen seal produced before the court and to 2025:KER:39786

compare the same with a seal affixed in the mahazar, collected sample and in the forwarding note to ensure that the seal of the sample is intact and there is no scope for tampering the same in between its collection and production before the court;

(ii) While forwarding the sample to the laboratory, the Thondy Clerk shall ensure that specimen sample seal is affixed on the forwarding note;

(iii) The forwarding letter shall contain the name of the official who is entrusted to handover the sample to the Chemical Examiner;

(iv) Specimen seal also to be provided to the Chemical Examiner for verification and to ensure that the specimen seal, so provided, is tallying with the seal affixed on the sample, to rule out the possibility of tampering while on transit of the sample;

(v) Thondy Clerk must be examined to prove compliance of the above, also to prove that he has been in custody of the sample from the date of receipt of sample till the date of forwarding and also to prove compliance of item No.(i) to (iv) steps stated hereinabove.

Measures to be ensured by the Chemical Examiner:

               (i)   Chemical       Examiner      shall    ensure
                                                             2025:KER:39786

production of specimen seal to verify as to whether the specimen seal provided in the forwarding note and the sample forwarded are tallying to rule out tampering of a sample during transit;

(ii) In the chemical analysis report the said fact shall be stated so as to act upon the same without examining the Chemical Examiner as provided under Section 293 Cr.P.C."

10. Apart from that, it has to be observed that, in a

case of this nature the prosecution could succeed only if it is

proved that the contraband liquor, which was allegedly

seized from the accused, ultimately reached the hands of the

Chemical Examiner without possibility of tampering.

Decisions reported in [1980 KHC 873], State of Rajasthan

v. Daulat Ram; [1993(2) KLT 550 (SC)], Valsala v. State of

Kerala; [2007 KHC 3404], Sasidharan v. State of Kerala

are given emphasis.

11. On perusal of Ext.P4 seizure mahazar, even

though it could be noted that the specimen seal of the

detecting officer was affixed on the samples collected, there

is no narration in the mahazar specifying the description of 2025:KER:39786

the nature of the specimen seal affixed in the sample and

also there is no sample seal affixed in the mahazar. Thus, the

contention raised by the learned counsel for the

appellant/accused that, in the instant case, it could not be

ensured that the sample collected reached at the hands of

the Chemical Examiner, without being manipulated, is a

point to be adjudged in favour of the appellant/accused to

give the benefit of doubt. If so, it could not be held that the

prosecution succeeded in proving that the accused

possessed 5 Litre of illicit arrack, against the prohibitions

contained in Kerala Abkari Act and thereby committed the

offence punishable under Section 8(1) read with 8(2) of the

Kerala Abkari Act. Therefore, the laxity pointed out and found

above would go to the root of the matter.

12. On evaluation of the evidence available, the

mandates necessary to ensure tamper proof collection of

sample of the alleged contraband as held in Vijayan @

Puthoor Vijayan's case (supra), failed to be established by

the prosecution and thus the prosecution failed to prove the

case beyond reasonable doubts. Therefore, the

accused/appellant herein is entitled to benefit of doubt and 2025:KER:39786

as such the conviction and sentence imposed by the trial

court in the above circumstances cannot sustain. In view of

the matter, the same are liable to be set aside.

13. In the result, the appeal is allowed. Conviction and

sentence imposed by the trial court against the

appellant/accused are set aside. Consequently, the

appellant/accused is acquitted for the offence under Section

8(1) read with 8(2) of the Abkari Act. The bail bond executed

by the appellant/accused shall stand cancelled. He is set at

liberty forthwith.

Amount, if any, being part of the fine deposited by the

appellant/accused by order of this Court shall be refunded to

him, in accordance with the procedure established by law.

Sd/-

A. BADHARUDEEN SK JUDGE