Kerala High Court

Ratheesh vs State Of Kerala on 26 May, 2025

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

              THE HONOURABLE MR. JUSTICE GOPINATH P.

       MONDAY, THE 26TH DAY OF MAY 2025 / 5TH JYAISHTA, 1947

                      CRL.A NO. 437 OF 2015

     AGAINST THE JUDGMENT DATED 30.03.2015 IN SC NO.155 OF 2014 OF

             ADDITIONAL SESSIONS JUDGE - I, KALPETTA

APPELLANT/ACCUSED:

          RATHEESH,
          AGED 28 YEARS,
          S/O. SUKUMARAN, ATHIKOTTU VEEDU THOLPETTY, THIRUNELLY
          AMSOM DESOM, MANATHAVADY TALUK, WAYANAD DISTRICT.


          BY ADVS.
          SRI.KRISHNA PRASAD. S
          SRI.NOBEL RAJU
          SRI.B.SIBI




RESPONDENT/RESPONDENT/COMPLAINANT:

          STATE OF KERALA,
          REPRESENTED BY THE PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING SUB
          INSPECTOR OF POLICE, THIRUNELLY POLICE STATION,
          WAYANAD.

          BY SMT.MAYA M.N, PUBLIC PROSECUTOR


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.05.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 437 OF 2015

                                   2

                                                        2025:KER:36152

                                JUDGMENT

The appellant is the sole accused in S.C.No.155 of 2014 on the

file of the Additional Sessions Judge - I, Kalpetta. The appellant was

charged with the offences punishable under Sections 55(a) and (i) of

the Abkari Act. The Trial Court convicted the appellant for the offence

under Section 55(a) of the Abkari Act and sentenced him to undergo

rigorous imprisonment for a period of one year and to pay fine of

Rs.1,00,000/- and in default to undergo rigorous imprisonment for a

period of three months. The appellant was found not guilty of the

offence punishable under Section 55(i) of the Abkari Act.

2. The allegation leading to the registration of Crime

No.169/2013 of Thirunelly Police Station is that on 03.05.2013 at

about 05.15 p.m, the appellant was found transporting 10 bottles of

Indian Made Foreign Liquor of 180 ml each in a taxi Jeep bearing

registration No.KL.12-6400. It was alleged that the liquor bottles in

question were ones which were meant for sale only in the State of

Karnataka. It was further alleged that the appellant/accused had been

transporting the Foreign Liquor for the purposes of sale. The

prosecution examined PWs 1 to 7 and marked Exts.P1 to P12. Material

objects were also identified.

CRL.A NO. 437 OF 2015

2025:KER:36152

3. The learned counsel appearing for the appellant

submits that this is a case where the Seizure mahazar (Ext.P2) does not

contain any seal. It is submitted that this goes to the root of the

prosecution case as held by this Court in Bhaskaran K. v. State of

Kerala and Another [2020 KHC 5296]. It is submitted that there was a

delay in producing the contraband. It is submitted that though the

material was allegedly seized from the appellant on 03.05.2013, the

materials were produced before the learned Magistrate only on

06.05.2013. The learned counsel appearing for the appellant also

submits that there is no charge that the appellant had illegally

imported Indian Made Foreign Liquor from the State of Karnataka and

in the absence of such a charge, the appellant could not be prosecuted

for the offences under Sections 55(a) and 55(i) of the Abkari Act as the

quantity allegedly seized from the appellant is within the permissible

limit. It is also submitted that the independent witnesses have turned

hostile to the prosecution.

4. The learned Public Prosecutor submits that there is

no question of delay in producing the contraband before the Court and

the delay had been properly explained by PW7, the Sub Inspector of

Police, Thirunelly, who was the detecting officer. It is submitted that

going by the deposition of PW7, he was on election duty at the relevant CRL.A NO. 437 OF 2015

2025:KER:36152

time and that is the reason for delay in producing the contraband

before the Court. It is submitted that this explanation is sufficient and

the prosecution cannot fail on the ground that there was delay in

producing the contraband before the Court. He submits that since

there is no dispute regarding the identity of the material that was

seized from the appellant, the fact that there is no description of the

seal on the Seizure mahazar is not fatal to the prosecution. It is also

submitted that the contention of the learned counsel for the appellant

that there is no charge that the Indian Made Foreign Liquor is

imported is of no avail as admittedly, the seized material was meant for

sale only in the State of Karnataka and the fact that it was seized from

the possession of the appellant in Kerala itself indicates that the same

was illegally imported into the State of Kerala.

5. Having heard the learned counsel appearing for the

appellant and the learned Public Prosecutor, I am of the view that the

appellant must succeed on a short point. Ext.P2 is the Seizure

mahazar. A perusal of Ext.P2 does not indicate that any seal was

affixed on the Seizure mahazar. It also does not show that any

description of the seal was mentioned in the Seizure mahazar. In

Bhaskaran K. (supra), it was held:-

"21. The detecting officer, who has drawn the CRL.A NO. 437 OF 2015

2025:KER:36152

sample, has to give evidence as to the nature of the seal

affixed on the bottle containing the sample. The nature of the

seal used shall be mentioned in the seizure mahazar. The

specimen of the seal shall be produced in the court. The

specimen of the seal shall be provided in the seizure mahazar

and also in the forwarding note so as to enable the Court to

satisfy the genuineness of the sample produced in the court

(See Achuthan v. State of Kerala : 2016 (1) KLD 391: ILR

2016(2) Ker 145). A comparison of the specimen of the seal of

the Court provided in the forwarding note with the seal

affixed on the sample bottle will not give any assurance that

the sample of the contraband allegedly seized from the

accused had reached the chemical examiner for analysis in a

tamper proof condition. Such an assurance is possible only

when the specimen of the seal affixed on the sample is

provided to the chemical examiner for comparison (See

Majeedkutty v. Excise Inspector : 2015 (1) KHC 424). When

the specimen of the seal affixed on the sample bottle is not

produced before the Court and forwarded to the chemical

examiner for verification to ensure that the sample seal, so

provided, is tallying with the seal affixed on the sample

bottle, no evidentiary value can be given to the chemical

analysis report and it cannot be found that the very same

sample which was drawn from the contraband article CRL.A NO. 437 OF 2015

2025:KER:36152

allegedly seized from the possession of the accused reached

the hands of the chemical examiner without any tampering

(See Rajamma v. State of Kerala : 2014 (1) KLT 506).

22. .xxx xxx xxx

23. It is not the case of the prosecution that there was no

other officer available to conduct the investigation. It is also

not the case of the prosecution that for some other reason

PW5 was compelled to conduct the entire investigation and

to file final report against the accused. It is a case in which,

without any exigencies of the situation, the detecting officer

who registered the case himself conducted the entire

investigation and filed final report. In view of the infirmities

pointed out earlier with regard to the arrest of the accused

and the steps taken for forwarding the sample for analysis,

the "one man show" conducted by PW5 has definitely caused

prejudice to the accused."