Kerala High Court
Prabhu Prakash vs State Of Kerala on 9 October, 2025
1
Crl. Appeal No. 1184/2010
2025:KER:74579
'C.R'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 9TH DAY OF OCTOBER 2025 / 17TH ASWINA, 1947
CRL.A NO. 1184 OF 2010
JUDGMENT DATED 19.06.2010 IN SC NO.704 OF 2007 OF ADDITIONAL
DISTRICT AND SESSIONS COURT, (ADHOC-III), KASARAGODE
APPELLANT/ACCUSED:
1 PRABHU PRAKASH, AGED 33/10, S/O.ENRY D'SOUZA,
ARCHAR HOUSE, MODAMBAYAL, KASARAGOD.
2 M.SURESH, AGED 23/10,
S/O.MOURISH D'SOUZA, BADAJE VILLAGE,, KASARAGOD, ARCHAR
HOUSE, MODAMBAYAL,, H.NO.VIII-402, PAIVALIGE PANCHAYATH,
KASARAGOD.
BY ADVS.
SRI.P.MOHAMED SABAH
SMT.SAIPOOJA
SHRI.FAIZEL K.
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER,
KUMBLA POLICE STATION, WHO IS REPRESENTED BEFORE THIS
HON'BLE COURT BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
BY SMT. HASNAMOL N.S., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALL HEARD ON 08.10.2025,
THE COURT ON 09.10.2025 DELIVERED THE FOLLOWING:
2
Crl. Appeal No. 1184/2010
2025:KER:74579
'C.R'
JOHNSON JOHN, J.
---------------------------------------------------------
Crl. Appeal No. 1184 of 2010
---------------------------------------------------------
Dated this the 9th day of October, 2025
JUDGMENT
The appellants are accused Nos. 1 and 2 in S.C. No. 704 of 2007
on the file of the Additional District and Sessions Judge, (Adhoc-III),
Kasaragod and they are challenging the conviction and sentence
imposed on them for the offence under Section 8(2) of the Abkari Act.
2. The prosecution case is that on 02.10.2006, at about 8.15
p.m., when the Sub Inspector of Kumbla Police Station and party
inspected the autorickshaw driven by the first accused along with the
second accused as passenger at Mukkarikandam, it is found that the
autorickshaw contained 3000 packets of arrack containing 100 ml. each
in 6 plastic sacks and the accused are thereby alleged to have
committed the offence punishable under Section 8(2) of the Abkari Act.
3. The trial court, after framing charge, examined PWs 1 to 6 and
marked Exhibits P1 to P8 from the side of the prosecution and no
evidence adduced from the side of the defence.
2025:KER:74579
4. After trial and hearing both sides, the trial court found both the
accused guilty of the offence under Section 8(2) of the Abkari Act and
sentenced them to undergo rigorous imprisonment for 4 years and to
pay a fine of Rs.1,00,000/- each and in default of payment of fine, to
undergo rigorous imprisonment for three months.
5. Heard Smt. Saipooja, the learned counsel for the appellants
and Smt. Hasnamol N.S., learned Public Prosecutor.
6. The learned counsel for the appellants argued that PWs 2 and
3, the independent witnesses examined by the prosecution, turned
hostile and a perusal of Exhibit P2, seizure mahazar, and Exhibit P7,
property list, would show that the specimen impression of the seal used
is not affixed in the seizure mahazar and property list. It is argued that
the mandate of Section 53A of the Abkari Act is not complied in this case
and that there is also violation of Section 38 of the Abkari Act and that
the prosecution has not complied with the procedural requirements for
ensuring tamper proof collection of samples and production of the same
in the Chemical Examiner's Laboratory in a fool proof condition and
therefore, the appellants are entitled for the benefit of reasonable doubt.
2025:KER:74579
7. The learned Public Prosecutor argued that the evidence of PW6,
Sub Inspector who detected the offence, is supported by the evidence of
PW1, Police Constable, and Exhibit P5, report of the chemical analyst,
would show that ethyl alcohol was detected in the samples and there is
no reason to interfere with the findings in the impugned judgment.
8. PW6 is the Sub Inspector who detected the offence and PW1 is
the Police Constable who accompanied PW6 and regarding the
occurrence, they were deposed in accordance with the prosecution case.
PWs 2 and 3, the independent witnesses examined by the prosecution,
turned hostile to the prosecution stating that they have not witnessed
the alleged occurrence.
9. According to PW6, after arresting accused Nos. 1 and 2, he
took samples of the contraband in two bottles of 375 ml. capacity. Even
though, PW6 stated that he affixed label and sealed the sample bottles
by using the seal of the SHO, he has not deposed anything regarding the
nature of the seal used. It is pertinent to note that the specimen
impression of the seal is not seen affixed in Exhibit P2, seizure mahazar,
or Exhibit P7, property list.
2025:KER:74579
10. The prosecution has no case that representative samples of
the contraband liquor 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
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
2025:KER:74579
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
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
2025:KER:74579
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."
11. 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.
12. 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
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;
2025:KER:74579
(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.
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;
2025:KER:74579
(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."
13. 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].
14. In this case, even though Exhibit P8, copy of the forwarding
note, is dated 03.10.2006, Exhibit P5, report of the chemical examiner,
would show that the sample was produced in the Chemical Examiner's
Laboratory only on 26.10.2006 and the prosecution has not examined
the property clerk of the court or the Police Constable to prove the
tamper proof despatch of the sample to the laboratory.
15. 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
2025:KER:74579
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 handed the
sample to prove that while in their custody, the seals on the sample
have not been tampered with.
16. 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
Laboratory was the very same sample which was drawn from the
contraband substance said to have been seized from the possession of
the accused.
17. 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
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.
2025:KER:74579
18. 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.
19. 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.
20. As per Section 38 of the Abkari Act, every Abkari Officer is
bound to give immediate information either to his immediate official
superior or to an Abkari Inspector and PW6 has no case that he complied
the mandate of Section 38 of the Abkari Act in this case. In cross
examination, PW6 admitted that after recording the crime number in the
arrest memo, he erased the same and there was no attempt on the side
of the prosecution to mark the arrest memo in evidence. PW6 admitted
2025:KER:74579
in cross examination that he has not verified the registration certificate
of the autorickshaw and he is not aware as to who is the registered
owner of the autorickshaw. PW5, who completed the investigation and
filed the final report, deposed in cross examination that he has not
conducted any investigation to ascertain the correct registration number
of the vehicle. He would say that the autorickshaw was in the premises
of the Police Station, when he conducted the investigation.
21. As noticed earlier, in this case, there is violation of the
mandate of Sections 53A and 38 of the Abkari Act and there is also no
satisfactory evidence to establish a fool proof chain of custody to prove
that it was the sample taken from the contraband liquor which ultimately
reached the hands of the chemical examiner in a fool proof condition and
therefore, I find that the appellants are 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
2025:KER:74579
aside and they are acquitted of the offence under Section 8(2) 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
