Kerala High Court
Nallan vs State Of Kerala on 13 October, 2025
CRL.A NO. 821 OF 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
MONDAY, THE 13TH DAY OF OCTOBER 2025 / 21ST ASWINA, 1947
CRL.A NO. 821 OF 2014
CRIME NO.41/2010 OF Manjeri Excise Range Office, Malappuram
AGAINST THE JUDGMENT DATED 14.08.2014 IN SC NO.93 OF
2012 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III,
MANJERI / III ADDITIONAL MACT/RENT CONTROL APPELLATE
AUTHORITY, MANJERI
APPELLANT/ACCUSED:
NALLAN
AGED 53 YEARS
S/O. MAYANDI, RESIDING AT THALAPPAKUZHY,
KALLADASSERI HOUSE, ELAMKUR AMSOM DESOM, ERNAD,
MALAPPURAM DISTRICT.
BY ADVS.
SRI.K.M.JAMALUDHEEN
SMT.LATHA PRABHAKARAN
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
ADV.ANJANA.K FOR APPELLANT, SR.PP- ALEX .M.
THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10.10.2025, THE COURT ON 13.10.2025 DELIVERED THE FOLLOWING:
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JOHNSON JOHN, J.
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Crl. Appeal No. 821 of 2014
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Dated this the 13th day of October, 2025
JUDGMENT
The appellant is the accused in S.C. No. 93 of 2012 on the file
of the Additional Sessions Judge-III, Manjeri and he is challenging the
conviction and sentence imposed on him for the offence under Section
8(2) of the Abkari Act as per the impugned judgment dated
14.08.2014.
2. The prosecution case is that while the Excise Inspector
and party were on patrol duty on 10.12.2010, and when they reached
Thalappakuzhi at about 2 p.m., they saw the accused coming with a
plastic can containing one litre of arrack and the accused is thereby
alleged to have committed the offence under Section 8(2) of the
Abkari Act.
3. Before the trial court, when the accused pleaded not
guilty to the charge, prosecution examined PWs 1 to 3 and marked
Exhibits P1 to P9(a) and MO1. No evidence adduced from the side of
the defence.
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4. After trial and hearing both sides, the trial court found
that the accused committed the offence under Section 8(2) of the
Abkari Act and sentenced him to undergo rigorous imprisonment for
two years and to pay a fine of Rs.1,00,000/- and in default of payment
of fine, to undergo simple imprisonment for three months.
5. Heard Smt. Anjana K., the learned counsel representing
the learned counsel for the appellant on record and Sri. Alex M.
Thombra, the learned Senior Public Prosecutor.
6. The learned counsel for the appellant argued that PW3,
the independent witness examined by the prosecution, turned hostile
and that there is violation of the mandate of Section 53A and Section
38 of the Abkari Act. It is also argued that there are serious
inconsistencies and contradictions in the evidence of PWs 1 and 2 and
that there is no satisfactory evidence in this case to show that the
prosecution has complied 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 appellant is entitled for the benefit of reasonable doubt.
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7. The learned Public Prosecutor argued that the evidence of
PW2, Excise Inspector who detected the offence, is supported by the
evidence of PW1, Preventive Officer, and Exhibit P8, report of the
chemical examiner.
8. PW2, Excise Inspector, and PW1, Excise Preventive
Officer, deposed regarding the occurrence in accordance with the
prosecution case. The evidence of PW2 shows that he has taken
representative sample of the arrack at the place of occurrence.
According to PW2, he took 200 ml. of arrack in a 375 ml. bottle and
sealed the sample bottle and the can containing the remaining arrack
by using his personal seal and also affixed label containing the
signature of the accused and the witnesses in the properties.
9. Exhibit P1 is the mahazar. The arrest memo and arrest
notice are marked as Exhibits P2 and P3. Exhibit P4 is the crime and
occurrence report and Exhibit P5 is the property list. It is pertinent to
note that the date stamp of the jurisdictional Magistrate is not seen
affixed in Exhibits P1 to P5. In the absence of date stamp of the court
in Exhibits P1 to P5, I find force in the argument of the learned counsel
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for the appellant that there is no satisfactory evidence in this case as
to when the said documents were produced before the court.
10. Rule 28 of the Criminal Rules of Practice, Kerala, 1982
reads thus:
"28. Date stamping of papers and initialling of FIR by Magistrates.-- (1) All
papers presented in Court shall be sealed with the date stamp of the Court immediately
they are received.
(2) Whenever a First Information Report is received in Court,
the Magistrate shall initial it noting the date and time of the receipt thereof."
11. A perusal of Exhibit P4, crime and occurrence report,
shows that there is no initial of the jurisdictional Magistrate noting the
date and time of the receipt of the same in the court as required under
sub-rule 2 of Rule 28.
12. PW3 is the independent witness examined by the
prosecution to prove the occurrence; but, he categorically deposed
before the court that he has not witnessed the alleged occurrence in
this case. Exhibit P6 is the copy of the forwarding note dated
10.12.2010 and in Exhibit P6 also, the date stamp of the court is not
seen affixed. The letter from the Judicial First Class Magistrate-I,
Manjeri to the Joint Chemical Examiner attached to Exhibit P6 shows
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that the sample was forwarded to the laboratory only on 23.12.2010.
Exhibit P8 report of the chemical analysis shows that the sample
forwarded through excise guard, Achudhan, as per letter dated
23.12.2010 of the Judicial First Class Magistrate-I Manjery was
produced in the Chemical Examiner's Laboratory on the same day.
13. PW2, Excise Inspector who detected the offence,
admitted in cross examination that he has not informed his superior
officer about the case and that he filed the final report after
investigation before the receipt of the report of the chemical examiner.
As per the 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 PW2 has no case that he complied the
mandate of Section 38 of the Abkari Act in this case.
14. In the present case, the prosecution has no case that the
representative sample of the contraband liquor was 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:
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"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 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
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(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 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."
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15. 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.
16. 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;
(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:
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(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;
(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."
17. 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].
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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 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 noticed earlier, in this case, the date stamp of the
jurisdictional Magistrate Court is not seen affixed in Exhibits P1 to P6
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and there is also violation of the mandate of Section 53A and 38 of the
Abkari Act. 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 and in this case, the prosecution has failed
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.
21. In the absence of 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, I find that the appellant is 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/appellant is
hereby set aside and he is acquitted of the offence under Section 8(2)
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of the Abkari Act. The bail bond executed by the appellant shall stand
cancelled and he is set at liberty forthwith.
Sd/-
JOHNSON JOHN,
JUDGE.
Rv
