Kerala High Court
Muthu vs The State Of Kerala on 29 October, 2025
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Crl. Appeal No. 630/2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 29TH DAY OF OCTOBER 2025 / 7TH KARTHIKA, 1947
CRL.A NO. 630 OF 2014
JUDGMENT DATED 30.06.2014 IN SC NO.67 OF 2012 OF SESSIONS COURT -
I, KALPETTA
APPELLANTS/ACCUSED NOS.1 AND 2:
1 K.M. MUTHU, AGED 34 YEARS
S/O MARI, KUNNIYOOR ADIYA COLONY, ANCHUPOTHI SIDE,
THIRUNELLY VILLAGE, MANANTHAVADY TALUK.
2 SATHEESH K.K., AGED 31 YEARS, S/O KRISHNAN, KALIYATTUTHARA
VEEDU, THRISSILERY VILLAGE, MANANTHAVADY.
BY ADVS.
SHRI.A.JAYASANKAR
SRI.MANU GOVIND
SRI.C.V.MANUVILSAN
SMT.K.VIDYA
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA, REPRESENTED THROUGH THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.10.2025, THE
COURT ON 29.10.2025 DELIVERED THE FOLLOWING:
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Crl. Appeal No. 630/2014
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JOHNSON JOHN, J.
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Crl. Appeal No. 630 of 2014
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Dated this the 29th day of October, 2025
JUDGMENT
The appellants are accused Nos. 1 and 2 in S.C. No. 67 of 2012 on
the file of the Additional Sessions Judge-I, Kalpetta and they are
challenging the conviction and sentence imposed on them for the offence
under Section 55(g) of the Abkari Act.
2. The prosecution case is that on 18.12.2008, at about 7.30
a.m., accused Nos. 1 to 4 were found manufacturing arrack in the
reserve forest near to Brahmagiri estate in a raid conducted by the
Excise Inspector of Mananthavady Excise Range and party.
3. The trial court, after framing charge, examined PWs 1 to 7 and
marked Exhibits P1 to P10 and MOs 1 and 2 from the side of the
prosecution and no evidence adduced from the side of the defence.
4. After trial and hearing both sides, the trial court found accused
Nos. 1 and 2 guilty of the offence under Section 55(g) of the Abkari Act
and sentenced them to undergo rigorous imprisonment for 4 years each
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and to pay a fine of Rs.1,00,000/- each and in default of payment of
fine, to undergo rigorous imprisonment for 3 months each. Accused Nos.
3 and 4 are found not guilty of the offence under Section 55(g) of the
Abkari Act and they are acquitted.
5. Heard Sri. Sabarinath S., the learned counsel representing the
learned counsel for the appellants on record, and Smt. Hasnamol N.S.,
the learned Public Prosecutor.
6. The learned counsel for the appellants argued that the mandate
of Section 53A of the Abkari Act is not complied in this case and the
prosecution has failed to establish the procedural requirements for
ensuring tamper proof collection of samples and production of the same
in the Chemical Examiner's Laboratory in fool proof condition and
therefore, the appellants are entitled for the benefit of reasonable doubt.
7. The learned Public Prosecutor argued that the evidence of PW1,
Excise Inspector, and PW4, Preventive Officer, regarding the occurrence
is reliable and that Exhibit P9, chemical examiner's report, would show
that ethyl alcohol was detected in the sample and hence, there is no
reason to interfere with the findings in the impugned judgment.
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8. PW1, is the Excise Range Inspector who detected the offence,
and PW4 is the Preventive Officer who accompanied PW1 at the time of
occurrence, and regarding the occurrence, they deposed in accordance
with the prosecution case. The evidence of PW1 is that while on patrol
duty and when they reached near Appapara at about 5 a.m., on
18.12.2008, he got information that the first accused Muthu and others
are manufacturing arrack in the reserve forest and accordingly, they
proceeded to the place of occurrence along with witnesses and they saw
accused Nos. 1 to 4 handling utensils for manufacturing arrack. The
evidence of PWs 1 and 4 shows that on seeing the excise party, accused
Nos. 3 and 4 ran away and they detained accused Nos. 1 and 2 and
recovered wash and other utensils from the place of occurrence. PWs 5
and 6 are the independent witnesses examined by the prosecution; but,
they turned hospital to the prosecution and deposed that they have not
witnessed the alleged occurrence.
9. According to PW1, he took sample of wash in a 500 ml. bottle
and sealed the same and destroyed the remaining wash at the place of
occurrence. The evidence of PW1 in cross examination shows that he has
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not obtained the permission of the Magistrate for destroying the
remaining wash. PW1 also admitted that he has not prepared any
memo before destroying the remaining wash at the place of occurrence.
PW1 denied the suggestion of the defence that accused Nos. 1 and 2
were taken to custody from their house and that no contraband item was
recovered from the possession of accused Nos. 1 and 2.
10. The learned counsel for the appellants invited my attention to
Exhibit P3, seizure mahazar to point out that specimen impression of the
seal used is not affixed in the mahazar and there is also nothing in the
mahazar regarding the nature of the seal used by the Detecting Officer.
11. A perusal of Exhibit P6 property list also shows that specimen
impression of the seal is not affixed in the property list and PW1 has also
not deposed anything regarding the nature of the seal used in his
evidence before the court. The learned counsel for the appellants also
invited my attention to Exhibit P9, report of the chemical examiner, to
point out that the sample forwarded from the court as per letter No. PR.
437/08 dated 19/12.2008 through excise guard, T. Sajeevan, was
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produced in the Chemical Examiner's Laboratory at Kozhikode only on
26.12.2008.
12. In this case, the prosecution has no case that representative
samples of the contraband were drawn in the presence of the Magistrate
as required under Section 53A(2)(c) of the Abkari Act. Section 53A of
the Abkari Act, inserted by Act 1 of 2003 with effect from 03.09.2002,
reads thus:
"53A. Disposal of seized liquor, intoxicating drugs or articles. -
(1) Notwithstanding anything contained in this Act, the State
Government may having regard to the nature of the liquor,
intoxicating drug, or article, their vulnerability to theft, substitution,
constraints of proper storage space or any other relevant
consideration, by notification in the official Gazette, specify such
liquor, intoxicating drug or article which shall, as soon as may be
after their seizure, be disposed of by the authorised officer referred
to in section 67B, in such manner as the Government may, from time
to time determine after following the procedure hereinafter
specified.
(2) Where any such notified liquor, intoxicating drug or, article has
been seized under this Act, the authorised officer shall prepare an
inventory of such liquor, intoxicating drug or article containing such
details relating to their description, quality, quantity, mode of
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packing, marks, numbers of such other identifying particulars of the
liquor, intoxicating drug or article or the packing containers in which
they are kept, place of origin and other particulars, as the authorised
officer may consider relevant to identify the liquor, intoxicating drug
or article in any proceedings under this Act and make an application
to any Magistrate having jurisdiction over the area where the seized
liquor, intoxicating drug or articles or stored for the purpose of,-
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs
of such liquor, intoxicating drug or article and certifying such
photographs as true; or
(c) allowing to draw representative samples of such liquor,
intoxicating drug or article in the presence of such Magistrate
and certifying the correctness of any list of samples so
drawn.
(3) Where an application is made under sub-section (2) the
Magistrate shall, as soon as may be, visit the place where such liquor,
intoxicating drug or articles are stored and take appropriate steps as
specified in clauses (a), (b) and (c) of sub-section (2), and allow the
application.
(4) Where any liquor or intoxicating drug or article under this Act has
been kept under the custody of any court in connection with any
offence committed under this Act, before the commencement of the
Abkari (Amendment) Act, 2003 or has been brought before a
Magistrate without complying the procedure laid down in sub-
section (2), the authorised officer shall obtain prior permission of the
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Court or Magistrate before initiating proceedings under sub-section
(2).
(5) Notwithstanding anything contained in the Indian Evidence Act,
1872 (Central Act 1 of 1872) or the Code of Criminal Procedure, 1973
(Central Act 2 of 1974) any Court trying an offence under this Act,
shall treat the inventory, the photographs of liquor, intoxicating drug
or article and any list of samples drawn under sub sections (2) and (4)
and certified by the Magistrate, as primary evidence in respect of
such offence.
Explanation. - 'Article' for the purpose of this section includes jaggery
and other like substances, the value of which depreciates in passage
of time."
13. In Andikutty v. State of Kerala [2023 KHC 777], this Court
held that the mandate of Section 53A has to be complied with in its
letter and spirit and if there is violation of Section 53A, the entire
prosecution case will vitiate on that ground itself.
14. The decision of this Court in Vijayan @ Puthoor Vijayan v.
State of Kerala [2021 (5) KHC 347] shows the steps to be followed by
the officer collecting the sample, thondi clerk who is authorised to
receive the thondi and the measures to be ensured by the chemical
examiner. The same reads as under:
"Steps to be followed by the officer collecting the sample:
(i) Collection of sample from the alleged contraband by the Officer
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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 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.
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Measures to be ensured by the Chemical Examiner:
(i) Chemical Examiner shall ensure 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 S.293 Cr.PC."
15. It is well settled that the prosecution has a duty to prove that
it was the sample taken from the contraband liquor which was allegedly
seized from the accused, ultimately reached the hands of the chemical
examiner, in a fool proof condition, as held by this Court in Sasidharan
v. State of Kerala [2007 (1) KLT 720=2007 KHC 3404].
16. In this case, even though Exhibit P7, copy of the forwarding
note, is dated 18.12.2008, Exhibit P9, report of the chemical examiner,
would show that the sample was produced in the Chemical Examiner's
Laboratory only on 26.12.2008 and the prosecution has not examined
the property clerk of the court or the excise guard to prove the tamper
proof dispatch of sample to the laboratory.
17. It is well settled that the prosecution can succeed only if it is
proved that the sample which was analyzed in the Chemical Examiner's
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Laboratory was the very same sample which was drawn from the
contraband substance said to have been seized from the possession of
the accused.
18. In Antony v. State of Kerala [2024 KHC OnLine 1082], this
Court held that the prosecution has a legal obligation to prove that it
was the contraband substance allegedly seized from the possession of
the accused, eventually reached the Chemical Examiner's laboratory in a
tamper proof condition and that the prosecution has also to prove the
chain of custody of the contraband commencing from the place of
occurrence upto the production of the same before the Chemical
Examiner's Laboratory. It was further held that where the sample
changed several hands before reaching the chemical examiner, the
prosecution has a duty to examine the various officials who handled the
sample to prove that while in their custody, the seals on the sample
have not been tampered with.
19. In Bhaskaran K. v. State of Kerala and another (2020 KHC
5296), this Court held that the nature of the seal used by the detecting
officer shall be mentioned in the seizure mahazar and the specimen of
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the seal shall be produced in the court so as to enable the court to
satisfy the genuineness of the sample produced in the court.
20. In Rajamma v. State of Kerala (2014 (1) KLT 506), this
Court held that if the specimen of the seal affixed on the bottle
containing the sample 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, no evidentiary
value can be attached to the chemical analysis report.
21. In Vijay Pandey v. State of Uttar Pradesh (AIR 2019 SC
3569), the Apex Court held that mere production of a laboratory report
that the sample tested was the contraband substance cannot be
conclusive proof by itself and that the sample seized and that tested
have to be co-related.
22. In this case, the prosecution has not complied the mandate of
Section 53A(2)(c) of the Abkari Act and there is also no satisfactory
evidence to establish a fool proof chain of custody, in as much as the
specimen impression of the seal used is not affixed in the seizure
mahazar or the property list and therefore, I find that the appellants are
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entitled for the benefit of reasonable doubt. Since the trial court failed to
consider the above vital aspects while appreciating the evidence, the
conviction and sentence passed by the trial court cannot be sustained.
In the result, this appeal is allowed. The conviction and sentence
imposed by the trial court against the accused/appellants is hereby set
aside and they are acquitted of the offence under Section 55(g) of the
Abkari Act. Bail bonds executed by the appellants shall stand cancelled
and they are set at liberty forthwith.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
