Kerala High Court
Kalam Valappil Susheela vs State Of Kerala on 25 June, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
WEDNESDAY, THE 25TH DAY OF JUNE 2025 / 4TH ASHADHA, 1947
CRL.REV.PET NO. 1304 OF 2017
CRIME NO.21/2003 OF PERINGOME POLICE STATION, KANNUR
AGAINST THE JUDGMENT DATED 31.01.2014 IN CRL.A NO.456
OF 2010 OF ADDITIONAL DISTRICT COURT & I,THALASSERY ARISING
OUT OF THE JUDGMENT DATED 11.10.2010 IN SC NO.941 OF 2004
OF ASSISTANT SESSIONS COURT, PAYYANNUR
REVISION PETITIONERS/LEGAL REPRESENTATIVE OF THE ACCUSED:
1 KALAM VALAPPIL SUSHEELA
AGED 45 YEARS
D/O.RAMAN VELICHAPPADAN, AGED 45 YEARS, BAKALAM,
ERIAM PO, PANAPPUZHA AMSOM, ERIAM DESOM, KANNUR
DISTRICT.
2 KALAM VALAPPIL ANITHAKUMARI
D/O.KUMARAN, AGED 23 YEARS, BAKALAM, ERIAM PO,
PANAPPUZHA AMSOM, ERIAM DESOM, KANNUR DISTRICT.
BY ADV SHRI.JOSE ANTONY
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
(SUB INSPECTOR OF POLICE , PERINGOME POLICE
STATION -CRIME NO. 21/2003)REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM 682 031.
OTHER PRESENT:
SMT. MAYA.M.N (PP)
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 25.06.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Crl.R.P.No.1304 of 2017
2
2025:KER:46077
P.V. BALAKRISHNAN, J.
......................................
Crl.R.P.No.1304 of 2017
...........................................................
Dated this the 25th day of June, 2025
ORDER
The revision petitioners are the legal representatives of the
accused in SC No.941 of 2004 on the files of the Assistant
Sessions Court, Payyannur, who had died. The accused therein
stood trial before that court for committing an offence
punishable under Sections 8(1) and (2) of the Abkari Act and was
convicted and sentenced thereunder. The appeal filed by the
accused before the Additional Sessions Court-I, Thalassery as
Criminal Appeal No.456 of 2010 was allowed in part by
upholding the conviction and modifying the sentence.
2. The prosecution case is that on 15.01.2003 at about
04.15 p.m., the accused was found possessing 5 litres of arrack
at a place called Punnakamparamba in Vellora amsom.
3. In the trial court, from the side of the prosecution,
PW1 to PW3 were examined, and Ext.P1 to P8 documents and
MO1 were marked. When the accused was examined under
Section 313 Cr.P.C., he denied all the incriminating
circumstances appearing against him in evidence and contended
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that he is innocent. From the side of the accused, no evidence
was adduced. 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 three years and to pay a
fine of Rs. 1 lakh under Section 8(2) of the Abkari Act and, in
default, to undergo simple imprisonment for a further period of
six months. As stated earlier, the appeal preferred by the
accused was allowed in part by judgment dated 31.01.2014, and
the appellate court, while confirming the conviction, modified
the sentence to one of rigorous imprisonment for a period of
nine months and to pay a fine of Rs.1 lakh under Section 8(1) r/w
Section 8(2) of the Abkari Act. The accused was also ordered to
undergo simple imprisonment for a period of six months, in case
the fine amount is not paid.
4. Heard Adv. O.V. Maniprasad, the learned counsel for
the revision petitioners and the learned Public Prosecutor.
5. The learned counsel for the revision petitioners
contended that both the trial court and the appellate court did
not appreciate the evidence in a proper perspective and has
arrived at a wrong conclusion of guilt against the accused. He
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submitted that the glass tumbler that was allegedly seized from
the possession of the accused at the time of detecting the
offence has not been produced before the court, and the label
allegedly affixed in MO1 with the signature of the accused and
detecting officer, was not found while it was marked in evidence.
He argued that the prosecution has not proved that the samples
taken and MO1 had reached the court and thereafter, the
chemical analyst in a tamper-proof condition. He also submitted
that the evidence of PW1, Ext.P2 seizure mahazar and Ext.P5
property list are totally silent about the nature of the seal
allegedly affixed by PW1 in the sample bottles and MO1. He
argued that there are no independent witnesses to prove the
detection of the offence and the prosecution has not examined
the person who carried the sample bottles to the chemical
analyst to show that they have reached the analyst in a tamper
proof condition.
6. 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 the
evidence of PW1 regarding the detection, seizure, taking of
samples, arrest of the accused, and sealing and labelling of the
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articles is credible and cogent, and even in the absence of
independent witnesses, his evidence can be relied upon. She also
argued that the evidence of PW1 would categorically show that
MO1 and the sample bottles were sealed then and there, and
Ext.P5 property list shows that the seals were intact when it
reached the court. She submitted that the article seized had
been produced before the court without any delay, and Ext.P8
chemical analysis report would show that the seized article is
nothing but arrack.
7. The materials on record show that, in order to prove
the detection, seizure, and arrest of the accused, only the
evidence of PW1, the detecting officer is available. His evidence
would show that on 15.01.2003 at about 04:15 p.m., he had
spotted the accused carrying a can, and when he intercepted
him and verified the contents of the can, he found it containing 5
litres of arrack. A further search also led to the recovery of a
glass tumbler from the pocket of the accused. Thereafter, he
arrested the accused by preparing Ext.P1 arrest memo and
seized all the articles by preparing Ext.P2 seizure mahazar. He
also took two samples of 300 ml each from the plastic can and
sealed and labelled all the articles, after affixing the signatures
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of the accused and the witnesses on them. Thereafter, he went to
the police station and registered Ext.P3 FIR. He also identified
the accused and MO1 in the court.
8. Be that as it may, it is very pertinent to note that even
though PW1 has testified that after seizing MO1, he had taken
two samples and had sealed and labelled them, he did not say
anything about the nature of the seal he had thus allegedly
affixed in them. A perusal of Ext.P2 seizure mahazar, which was
prepared contemporaneously, would also go to show that nothing
is mentioned about the nature of the seal affixed in these
articles. It is again to be taken note that the sample bottles and
MO1 were not produced along with the accused and other
documents before the Magistrate on 16.01.2003, and the same
were produced only on 17.01.2003. The explanation offered by
PW3 that, it is due to the law and order situation, the properties
could not be produced on 16.01.2003 itself, along with the
accused, other documents is not at all impressive. Further, it is
to be taken note that even in Ext.P5 property list, the nature of
the seal affixed in the sample bottles and MO1 has not been
mentioned, and it merely says that they are sealed. The
specimen of the seal, which has been allegedly affixed in the
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sample bottles, find a place for the first time only in Ext.P6
forwarding note, which has been received by the court nearly
two months after the incident, i.e., on 10.03.2003. It is a settled
law that the prosecution is duty-bound to prove that the article
seized and the samples taken from the spot have reached the
court and thereafter, the Chemical Analyst in a tamper-proof
condition. In the absence of the specimen seal in Ext.P2 seizure
mahazar and the details of the same also not forthcoming in the
testimony of PW1, I have no doubt in finding that the
prosecution has failed in its aforementioned duty. In other words,
it cannot be stated without doubt that it is samples which were
allegedly taken from the spot that has reached the Magistrate
and thereafter, the Chemical Analyst, leading to Ext.P8
certificate. Both the trial court and appellate court have missed
this relevant point while appreciating the evidence and has
arrived at the wrong conclusion of guilt against the accused.
This in turn means, this revision petition is only to be allowed,
thereby setting aside the conviction and sentence passed against
the accused.
9. In the result, this Crl.R.P., is allowed as follows;
1. The conviction and sentence of the accused under
Section 8(1) and (2) of the Abkari Act in SC No. 941 of
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2004 by the Assistant Sessions Court, Payyannur, and
confirmed in Crl.Appl.No. 456 of 2010 by the
Additional Sessions Court-I, Thalassery, is set aside.
2. It is made clear that if any deposit is made by the
revision petitioners pursuant to the orders passed by
this Court in this criminal revision petition, the same
shall be returned to them.
Sd/-
P.V. BALAKRISHNAN,
JUDGE
Dxy
