Kerala High Court
Hamza vs State Of Kerala on 15 October, 2025
Crl.Appeal Nos.702 & 762 of 2011 1
2025:KER:76641
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 15TH DAY OF OCTOBER 2025 / 23RD ASWINA, 1947
CRL.A NO. 702 OF 2011
AGAINST THE jUDGMENT DATED 06.03.2011 IN SC NO.54 OF
2007 OF 3RD ADDITIONAL SESSIONS JUDGE(ADHOC-I), THODUPUZHA.
APPELLANT/ACCUSED NO.1:
HAMZA, S/O.ABU, URAVACHAL KARA,
PAZHASSI VILLAGE, THALASSERY TALUK.
BY ADV.BHAVANA.K.K.
RESPONDENT/COMPLAINANT:
STATE OF KERALA THROUGH THE EXCISE INSPECTOR,
DEVIKULAM EXCISE RANGE, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.HASNAMOL.N.S.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
13.10.2025, ALONG WITH CRL.A.762/2011, THE COURT ON 15-10-2025
DELIVERED THE FOLLOWING:
Crl.Appeal Nos.702 & 762 of 2011 2
2025:KER:76641
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 15TH DAY OF OCTOBER 2025 / 23RD ASWINA, 1947
CRL.A NO. 762 OF 2011
AGAINST THE JUDGMENT DATED 06-03-2011 IN SC NO.440 OF
2009 OF 3RD ADDITIONAL SESSIONS COURT (ADHOC-I), THODUPUZHA.
APPELLANT/ACCUSED:
YOOSUF, AGED 50 YEARS,
S/O.MAMMOOTTY HAJI, ISMAIL MANZIL,
URAVACHAL KARA, PAZHASSI VILLAGE,
THALASSERY TALUK.
BY ADVS.SRI.ANANTHKRISHNA K.S.
SRI.ANIL K.MUHAMED
SRI.R.ANIL
SRI.T.ANIL KUMAR
SRI.MANU TOM
SHRI.SUJESH MENON V.B.
SRI.SHYAM ARAVIND
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.HASNAMOL.N.S.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
13.10.2025, ALONG WITH CRL.A.702/2011, THE COURT ON 15-10-2025
DELIVERED THE FOLLOWING:
Crl.Appeal Nos.702 & 762 of 2011 3
2025:KER:76641
JOHNSON JOHN, J.
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Crl.Appeal Nos.702 & 762 of 2011
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Dated this the 15th day of October, 2025.
J U D G M E N T
The appellants are convicted and sentenced
for offence under Section 55(a) of the Abkari Act
as per the impugned judgment dated 06-0-2011 of
the 3rd Additional Sessions Judge, Thodupuzha in
S.C No.54 of 2007 & 440 of 2009.
2. The prosecution case is that on
21.12.1999, accused numbers 1 to 3 were found
transporting 6275 litres of spirit in a lorry
bearing registration No.KL-13 4533 owned by the 4 th
accused through Munnar - Mattupetty road, by the
Excise Inspector, Adimaly Excise Enforcement and
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Anti-Narcotic Special Squad and the accused are
thereby alleged to have committed the offence
punishable under Section 55(a) of the Abkari Act.
3. When the accused pleaded not guilty to the
charge, the trial court examined PWs 1 to 8 and
marked Exhibits P1 to P9 and MO1. From the side of
the defence DWs1 and 2 were examined and Exts.D1
to D3 were marked. Ext.X1 is also marked as court
exhibit.
4. After trial and hearing both sides,
accused Nos.1 and 2 were found guilty of the
offence under Section 55(a) of the Abkari Act and
sentenced to undergo simple imprisonment for 2
years and to pay a fine of Rs.1,00,000/- each and
in default of payment of fine, to undergo simple
imprisonment for one month. The 3 rd accused is no
more and the case as against the 4 th accused is
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split up and refiled.
5. Heard Adv.Bhavana.K.K, the learned counsel
representing the learned counsel for the
appellant/first accused on record, the learned
counsel Adv.Ananth Krishna.K.S, the learned
counsel representing the learned counsel for the
appellant/second accused on record and Smt.
Hasnamol N.S., learned Public Prosecutor.
6. The learned counsel for the appellants
argued that PWs 3 and 6, the independent witnesses
examined by the prosecution, turned hostile and a
perusal of Exhibit P1, mahazar, and Exhibit P5,
property list, would show that the specimen
impression of the seal used is not affixed in the
seizure mahazar and property list. It is pointed
out that the evidence of PW1 Excise Inspector of
Excise Enforcement and Anti-Narcotic Special Squad
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would show that he produced the accused and
properties in the Excise Range Office only on the
next day of the occurrence and till then he kept
the properties in his personal custody and not in
the property room of the Range Office. It is
argued that the mandate of Section 53A of the
Abkari Act is not complied in this case 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.
7. The learned Public Prosecutor argued that
the evidence of PW1, Excise Inspector who detected
the case, is supported by the evidence of PW7,
Preventive Officer, and Exhibit P7, report of the
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chemical analyst and there is no reason to
interfere with the findings in the impugned
judgment.
8. PW1 is the Excise Inspector, who detected
the offence and PW7 is the Preventive Officer, who
accompanied PW1 and regarding the occurrence, they
deposed in accordance with the prosecution case.
The evidence of PWs 3 and 6, the independent
witnesses examined by the prosecution shows that
they have not witnessed the alleged occurrence.
9. According to PW1, at the time of
occurrence, he took samples from 220 jars
containing spirit in 220 bottles of 180 ml
capacity and thereafter sealed the sample bottles
and the jars containing the remaining spirit and
also affixed label containing his signature and
signatures of the witnesses. However, he admitted
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in cross examination that he has not obtained the
signature of the accused persons in the label. PW1
further admitted in cross examination that there
is property room and property register in the
Range Office and that the Circle Inspector is the
custodian of the property room in the Range
Office. In cross examination, PW1 categorically
admitted that only on the next day he produced the
properties and accused in the Range Office and
till that time the accused and properties were in
his personal custody.
10. It is pertinent to note that the evidence
of PW4 Excise Inspector and Ext.P4 crime and
occurrence report would show that the crime and
occurrence report is registered only on 22-12-
1999. In Ext.P5 property list also the specimen
impression of the seal is not seen affixed. Even
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though PW1 deposed that Ext.P12 is the copy of the
Inventory of the properties produced before the
Magistrate, the same would show that it is only
the list of properties filed on 3-12-2008 and the
same is not certified by the Magistrate.
11. Ext.P6 is the copy of the forwarding note
and the specimen impression of the seal is not
seen affixed in the space for sample seal. A
perusal of Ext.P7 report of the Chemical Analyst
would show that the sample forwarded from the
court as per letter dated 5-1-2000 was produced in
the Chemical Examination Laboratory on 6-1-2000.
12. The prosecution has no case that the
representative samples of the contraband spirit
were drawn in the presence of the Magistrate as
required under Section 53A(2)(c) of the Abkari
Act. But, Section 53A of the Abkari Act was
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inserted by Act 1 of 2003 with effect from 03-09-
2002 and since the occurrence in this case was
prior to that, the accused cannot take advantage
of non compliance of Section 53A of the Act.
13. 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;
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(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
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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 CrPC."
14. 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
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(1) KLT 720=2007 KHC 3404].
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 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
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tampered with.
16. 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.
17. 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.
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18. 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.
19. It is well settled that the prosecution
can succeed only if it is proved that the sample
which was analysed in the chemical examination
laboratory was the very same sample which was
drawn from the contraband substance said to have
been seized from the possession of the accused. In
this case, PW1 Excise Inspector has categorically
admitted in cross examination that he has not
produced the properties in the Excise Range Office
on the date of occurrence and that he produced the
properties only on the next day. PW1 also
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categorically admitted in cross examination that
there is property room and property register in
the Excise Range Office and that he has not
entrusted the properties in the Excise Range
Office for keeping the same in the property room
and that the property was in his personal custody
till the same was produced in the Excise Range
Office on the next day.
20. The evidence of PW1 and Exts.P1 mahazar,
P5 property list and P6 forwarding note would show
that the specimen impression of the seal used is
not affixed in the said documents and therefore, I
find that there is no satisfactory evidence to
establish a foolproof chain of custody to prove
that it was the sample taken from the contraband
spirit which ultimately reached the hands of the
chemical examiner in a fool proof condition and
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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, the above appeals are
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(a) of the Abkari Act.
Bail bonds executed by the appellants shall stand
cancelled and they are set at liberty forthwith.
Sd/- JOHNSON JOHN, JUDGE.
amk
