Kerala High Court
Aneesh vs State Of Kerala on 8 September, 2025
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Crl. Appeal No. 397/2014 2025:KER:66401
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
MONDAY, THE 8TH DAY OF SEPTEMBER 2025 / 17TH BHADRA, 1947
CRL.A NO. 102 OF 2014
CRIME NO.36/2009 OF PARLI EXCISE RANGE, Palakkad
JUDGMENT DATED 03.01.2014 IN SC NO.195 OF 2011 OF ADDITIONAL
SESSIONS COURT - V, PALAKKAD
APPELLANT/ACCUSED NO.2:
SHIVADAS, AGED 31 YEARS, S/O. CHAMIYAR, CHANDRAN VEEDU,
POOLAPPARAMBU, PALLASSENA, PALAKKAD.
BY ADV SRI.V.A.JOHNSON (VARIKKAPPALLIL)
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM.
SMT. HASNAMOL N.S., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.08.2025, ALONG
WITH CRL.A.397 OF 2014, THE COURT ON 08.09.2015, DELIVERED THE FOLLOWING:
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Crl. Appeal No. 397/2014 2025:KER:66401
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
MONDAY, THE 8TH DAY OF SEPTEMBER 2025 / 17TH BHADRA, 1947
CRL.A NO. 397 OF 2014
CRIME NO.36/2009 OF PARLI EXCISE RANGE
JUDGMENT DATED 03.01.2014 IN SC NO.195 OF 2011 OF ADDITIONAL
SESSIONS COURT - V, PALAKKAD
APPELLANT/ACCUSED NO.1:
ANEESH, AGED 24 YEARS, S/O.SWAMITHANAN, MANNAMKULAMBU
VEEDU, VADAVANNUR POST, CHITTUR, PALAKKAD.
BY ADV SRI.NIREESH MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI. ALEX M. THOMBRA, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.08.2025, ALONG
WITH CRL.A.102 OF 2014, THE COURT ON 08.09.2025 DELIVERED THE
FOLLOWING:
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Crl. Appeal No. 397/2014 2025:KER:66401
JOHNSON JOHN, J.
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Crl. Appeal No. 102 & 397 of 2014
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Dated this the 8th day of September, 2025
JUDGMENT
The appellants are accused Nos. 1 and 2 in S.C. No. 195 of 2011
on the file of the Additional Sessions Judge-V, Palakkad and they are
challenging the conviction and sentence passed against them under
Section 55 of the Abkari Act.
2. As per the prosecution case, on 21.12.2009, at 11.20 a.m., the
accused were found in possession and transporting 180 litres of spirit in
6 cans of 35 litre capacity in a white ambassador car along the Palakkad-
Kozhikode Highway. The trial court framed charge for the offence under
Section 55 of the Abkari Act and when the accused persons pleaded not
guilty to the charge, PWs 1 to 5 were examined and Exhibits P1 to P15
and MOs 1 and 2 were marked from the side of the prosecution and no
evidence adduced from the side of the defence.
3. After hearing both sides and analysing the evidence, the trial
court convicted both the accused for the offence under Section 55 of the
Abkari Act.
4. Heard Sri. Nireesh Mathew, the learned counsel for the
appellant/first accused and Sri. V.A. Johnson Varikkappallil, the learned
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counsel for the appellant/second accused and Sri. Alex M. Thombra and
Smt. Hasnamol N.S., the learned Public Prosecutors.
5. On behalf of the appellants, it is argued that the prosecution
has miserably failed to prove that it was the sample taken from the
contraband liquor which was allegedly seized from the accused, which
ultimately reached the hands of the chemical examiner and the
prosecution has not explained the inordinate delay in sending the sample
for chemical examination and there is also non compliance of the
mandates of Section 53 with regard to the seizure and preparation of
inventory.
6. But, the learned Public Prosecutor argued that there is no
reason to disbelieve the evidence of the official witnesses regarding the
occurrence and seizure of the contraband items from the possession of
the accused persons and that the mahazar and the crime and occurrence
report reached the court on the date of occurrence itself and therefore,
there is no reason to interfere with the findings of the trial court.
7. The learned counsel for the appellants invited my attention to
the court charge and the operative portion of the impugned judgment to
Crl. Appeal No. 397/2014 2025:KER:66401
point out that it is not stated in the court charge or the impugned
judgment as to under which sub-clause of Section 55 of the Abkari Act,
the accused persons were charged and found guilty. It is true that in the
court charge and the trial court judgment, it is not stated under which
sub-clause of Section 55 of the Abkari Act, the accused are charged and
found guilty. But, a perusal of the court charge clearly shows that the
specific charge is that the accused persons possessed and transported
180 lites of spirit in 6 cans of 36 litre capacity in a white ambassador car
along the Pallakkad-Kozhikode Highway at 11.20 a.m. on 21.12.2009
and therefore, it is clear that the charge is under Section 55(a) of the
Abkari Act.
8. Section 215 Cr.P.C provides that no error in stating either the
offence or the particulars required to be stated in the charge, and no
omission to state the offence or those particulars, shall be regarded at
any stage of the case as material, unless the accused was in fact misled
by such error or omission, and it has occasioned a failure of justice.
Therefore, considering the materials on record, I find that the omission
to mention sub-clause (a) of Section 55 in the court charge or the
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impugned judgment has not misled the accused persons or caused any
failure of justice and therefore, the same cannot be accepted as a reason
to interfere with the findings in the impugned judgment.
9. PW1 is the Excise Inspector who detected the offence and PW2
is the Preventive Officer who accompanied PW1 and regarding the
occurrence, they deposed in accordance with the prosecution case.
Exhibit P7 is the property list and it shows that item No.1 is 6 bottles of
375 ml. capacity, each containing 300 ml. of spirit marked as A1, B1,
C1, D1, E1, F1. But, it is pertinent to note that nothing is stated as to
whether the sample bottles are sealed or labelled. The specimen
impression of the seal used is also not seen affixed in Exhibit P7 property
list. The prosecution has no case that the specimen impression of the
seal used is separately produced before the court for the purpose of
comparison.
10. 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
Crl. Appeal No. 397/2014 2025:KER:66401
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.
Measures to be ensured by the Chemical Examiner:
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(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."
11. 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].
12. When the specimen impression of the seal used is not affixed
in the property list and not produced before the court to enable the
property clerk for comparison, it is not possible to arrive at a conclusion
that the sample which reached the Chemical Examiner's Laboratory was
the sample taken from the contraband allegedly seized from the
possession of the accused.
13. Exhibit P8 is the copy of the forwarding note dated
21.12.2009 and the space meant for writing the name of the Excise
Preventive Officer/excise guard with whom the sample is to be sent for
Crl. Appeal No. 397/2014 2025:KER:66401
analysis is kept blank in Exhibit P8. A perusal of Exhibit P15 report of the
Chemical Examiner dated 22.3.2010 would show that the sample was
sent for chemical analysis only on 15.3.2010 through the excise guard,
Manoharan and the same was produced before the Chemical Examiner's
Laboratory at Ernakulam only on 16.03.2010.
14. In Kumaran v. State of Kerala [2016(4) KLT 718], this
Court has held that when the space meant for writing the name of the
Excise Guard/Police Officer with whom the sample was sent, is remaining
vacant in the copy of the forwarding note, it was imperative for the
prosecution to examine the thondy clerk of the court or the excise guard
concerned, to prove the tamper-proof despatch of the sample to the
laboratory.
15. In this case, the prosecution has not examined the thondi
clerk or the excise guard through whom the sample was sent to the
Chemical Examiner's Laboratory to prove the tamper proof dispatch to
the laboratory.
16. As noticed earlier, Exhibit P8, copy of the forwarding note, is
dated 21.12.2009 and Exhibit P15, report of the Chemical Examiner's
Laboratory, clearly shows that the sample was received in the Chemical
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Examiner's Laboratory only on 16.03.2010 and therefore, 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 that the appellants are entitled for the benefit of
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 appeals are allowed. The conviction and sentence
imposed by the trial court against the appellants are 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.
Rv
