Kerala High Court
P.P.Sumeesh vs State Of Kerala on 19 June, 2025
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Crl.R.P.No.392 of 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
THURSDAY, THE 19TH DAY OF JUNE 2025 / 29TH JYAISHTA, 1947
CRL.REV.PET NO. 392 OF 2016
CRIME NO.5/2006 OF Chelannur Excise Range Office, Kozhikode
AGAINST THE JUDGMENT DATED 14.07.2015 IN Crl.A NO.319
OF 2013 OF III ADDITIONAL SESSIONS COURT, KOZHIKODE ARISING
OUT OF THE JUDGMENT DATED 14.06.2013 IN SC NO.188 OF 2011 OF
IST ADDITIONAL ASSISTANT SESSIONS COURT, KOZHIKODE
REVISION PETITIONER/APPELLANT/ACCUSED:
P.P.SUMEESH
S/O. SURENDRAN, PANAMKUNNU PARAMBATH HOUSE,
VENGERI AMSOM DESOM, KOZHIKODE.
BY ADV SHRI.P.V.ANOOP
RESPONDENT/COMPLAINANT & STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM, KOCHI - 682 031.
OTHER PRESENT:
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Crl.R.P.No.392 of 2016
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SMT.MAYA M.N (PP)
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 19.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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Crl.R.P.No.392 of 2016
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ORDER
Challenging the concurrent findings of guilt,
conviction and sentence under Section 8(1) and 8(2)
of the Abkari Act, the sole accused in Crime No.5
of 2006 of Chelannur Excise Range, had filed this
criminal revision petition.
2. The prosecution case is that on 08.02.2006
at about 11.30 p.m, PW1 detected the accused
possessing 35 litres of arrack in a can tied to a
scooter bearing registration No.KL-11B 5112 at a
place called 'Palath'. Hence, the prosecution
alleged that the accused has committed the offence
under Section 8(1) and 8(2) of the Abkari Act.
2. In the trial court (Ist Additional
Assistant Sessions Court, Kozhikode), from the side
of the prosecution, PW1 to PW6 were examined and
Exts.P1 to P9 documents and MO1 were marked. When
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examined under Section 313 of Cr.P.C, the accused
denied all incriminating circumstances appearing
against him in evidence and contended that he is
innocent. From the side of the accused, the accused
himself got examined as DW1 and another witness was
examined as DW2. The trial court, on an
appreciation of the evidence on record, found the
accused guilty and convicted him under Section 8(1)
of the Abkari Act. He was sentenced to undergo
rigorous imprisonment for a period of two years and
to pay a fine of Rs.1,00,000/- under Section 8(2)
of the Abkari Act, with a default clause. The
accused carried the matter in appeal by filing
Crl.A.No.319 of 2013 before the Additional Sessions
Court-III, Kozhikode. The said court, by judgment
dated 14.07.2015, dismissed the appeal.
3. Heard the learned counsel for the revision
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petitioner and the learned Public Prosecutor.
Perused the records.
4. The learned counsel for the revision
petitioner contended that both the trial court as
well as the appellate court had failed to
appreciate the evidence in a proper perspective and
has arrived at a wrong conclusion of guilt against
the accused. He argued that the accused has been
falsely implicated in this case due to animosity
which arose out of an altercation between him and
PW1. He further submitted that the evidence of DW1
and DW2 which pinpoints to the afore fact has not
been considered by both the courts below. He
further submitted that PW6, who is an Excise
Inspector of Excise Special Squad, Kozhikode is not
competent to investigate this case. He also argued
that the prosecution has failed to prove beyond
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reasonable doubt that the contraband and the sample
reached the court and thereafter, the chemical
analyst in a tamper proof condition.
5. Per contra, the learned Public Prosecutor
supported the impugned judgments and contended that
there are no grounds to interfere with the same.
She argued that even though the independent
witnesses; PW3 and PW5 have turned hostile, the
evidence of PW1 and PW2; the Excise Officials are
credible and cogent and it will prove the detection
of the contraband from the accused, his arrest,
taking sample, sealing of the articles and
forwarding them to the court. She further submitted
that there is no delay in the contraband and the
sample reaching the court and the articles were
properly sealed and labelled at the place of
occurrence itself. She submitted that Ext.P9
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chemical analysis report confirms the fact that the
articles seized is nothing, but arrack. As regards
the contention regarding the competency of PW6 to
investigate the matter, the learned Public
Prosecutor contended that PW6 is an Excise
Inspector attached to the Excise Enforcement and
Anti Narcotic Special Squad, Kozhikode and he has
been authroised by the Assistant Commissioner to
investigate the offence as per an order dated
13.10.2008. Hence, she prayed that this criminal
revision petition may be dismissed.
6. On an appraisal of the materials on record,
it can be seen that both the trial court and the
appellate court have placed reliance upon the
evidence of PW1 and PW2, the Excise Officials to
prove the detection, seizure, arrest of the
accused, sampling, sealing etc. As rightly found
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by both the courts, the evidence of PW1 and PW2 are
credible and cogent and they would show that the
accused was caught red handed while transporting 35
litres of arrack in MO1 Can. Their evidence also
reveal that after detaining the accused, a sample
was taken and thereafter, both MO1 and the sample
bottle were sealed and labelled and the accused was
arrested after preparing Ext.P1 arrest memo and
Ext.P2 body mahazar. Ext.P3 scene mahazar also
contains the specimen of the seal thus affixed by
PW1 in the articles. It is further discernible from
evidence that the accused, along with Ext.P1 arrest
memo, Ext.P2 body mahazar, Ext.P3 scene mahazar,
Ext.P5 crime and occurrence report and Ext.P6 list
of contraband articles were produced before the
Magistrate without delay, on 09.02.2006 itself.
7. But it is very pertinent to note that MO1
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can and the sample bottle have not been produced
before the Magistrate along with the accused and
other documents on 09.02.2006. A perusal of Ext.P4
thondy list would show that MO1 can, the sample
bottle and the rope which was used to tie the can
with the scooter has been produced in the court
only on 10.02.2006. There is absolutely no
explanation forthcoming from the side of the
prosecution as to why the afore articles were not
produced before the Magistrate along with the
accused and other documents on 09.02.2006. The
answer given by PW1 when the same was pointed out
by the learned counsel for the accused during cross
examination was that he had entrusted these
articles with a Guard to be produced before the
court on the next day itself. He further added
that he does not know what had happened thereafter.
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It is a settled law that the prosecution is duty
bound to prove as to how, where, under whose
custody and in what condition, the contraband and
sample bottles were kept, till they were produced
before the Magistrate (see State of Uttar Pradesh
v. Hansraj @ Hansu [(2018) 18 SCC 355] and Chandran
and Another v. State of Kerala and Another [2022
KHC 3500]. Even if the delay in producing the
seized contraband substance and sample drawn from
it before the Magistrate is short, the prosecution
is duty bound to explain the delay satisfactorily
and also to prove as to how and in what condition
they were preserved during the interregnum period.
In the present case, from the evidence of PW1
itself, it is very clear that the prosecution has
no idea as to where and how these articles were
kept before producing them in court. If so, even
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though the delay is of two days, the same being
remaining unexplained and there being no evidence
to show as to where and in what condition these
articles were kept, I find that the prosecution has
not proved that the contraband and the sample
allegedly taken from the spot had reached the court
and thereafter the Chemical Analyst in a tamper
proof condition. This, in turn, means that the
conviction and sentence rendered against the
accused under Section 8(1) and 8(2) of the Abkari
Act cannot be sustained.
Ergo, this criminal revision petition is
allowed as follows;
The conviction and sentence of the revision
petitioner/accused under Section 8(1) and 8(2) of
the Abkari Act in S.C.No.188 of 2011 by the 1st
Additional Assistant Sessions Court, Kozhikode and
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as confirmed by the IIIrd Additional Sessions Court,
Kozhikode in Crl.A.No.319 of 2013 are set aside and
the revision petitioner/accused is set at liberty.
Sd/-
P.V.BALAKRISHNAN
JUDGE
scl
