Kerala High Court
Suresh vs State Of Kerala on 24 September, 2025
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Crl. Appeal No. 738/2014 2025:KER:71215
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 24TH DAY OF SEPTEMBER 2025 / 2ND ASWINA, 1947
CRL.A NO. 738 OF 2014
CRIME NO.130/2009 OF PATHANAMTHITTA EXCISE RANGE OFFICE, PATHANAMTHITTA
CP NO.97 OF 2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, PATHANAMTHITTA
JUDGMENT DATED 03.07.2014 IN SC NO.334 OF 2013 OF ADDITIONAL DISTRICT
COURT & SESSIONS COURT - IV, PATHANAMTHITTA
APPELLANT/ACCUSED:
SURESH, S/O GOPI, EZHIKKADU COLONY, KURICHIMUTTOM MURI,
KOZHENCHERRY TALUK.
BY ADV SMT.INDU SUSAN JACOB
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM.
SMT. HASNAMOL N.S., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2025, THE
COURT ON 24.09.2025 DELIVERED THE FOLLOWING:
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Crl. Appeal No. 738/2014 2025:KER:71215
JOHNSON JOHN, J.
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Crl. Appeal No. 738 of 2014
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Dated this the 24th day of September, 2025
JUDGMENT
The appellant is the accused in S.C. No. 334 of 2013 on the file of
the Additional District and Sessions Judge-IV, Pathanamthitta and he is
challenging the conviction and sentence imposed on him for the offence
under Section 8(1) r/w 8(2) of the Abkari Act.
2. The prosecution case is that on 09.12.2009, at about 7 a.m.,
the accused was found in possession of a 5 litre can containing 3 litres of
coloured arrack near Ezhikkad junction in Kidangannoor Village.
3. The trial court, after framing charge, examined PWs 1 to 4 and
marked Exhibits P1 to P9 and MO1 from the side of the prosecution and
no evidence adduced from the side of the accused.
4. After trial and hearing both sides, the trial court found the
accused guilty of the offence under Section 8(1) r/w 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 six months.
Crl. Appeal No. 738/2014 2025:KER:71215
5. Heard Smt. Indu Susan Jacob, the learned counsel for the
appellant and Smt. Hasnamol N.S., the learned Public Prosecutor.
6. The learned counsel for the appellant argued that PWs 1 and 2,
the independent witnesses examined by the prosecution, turned hostile
and a perusal of Exhibit P8, copy of the forwarding note, and Exhibit P9,
report of the chemical examiner, would show that there is inordinate
delay in forwarding the sample to the Chemical Examiner's Laboratory.
The learned counsel for the appellant pointed out that Exhibit P8, copy of
the forwarding note is dated 09.12.2009 and Exhibit P9 report of the
chemical examiner would show that the sample forwarded from the
Judicial First Class Magistrate, Pathanamthitta, as per letter dated
24.02.2010 was produced in the Chemical Examiner's Laboratory,
Thiruvananthapuram only on 25.2.2010. The learned counsel for the
appellant also pointed out that in Exhibit P8, copy of the forwarding
note, the space meant for writing the name of the excise guard with
whom the sample is to be sent for analysis is kept blank.
7. PWs 3 and 4 are the excise officials who detected the offence
and regarding the occurrence, they deposed in accordance with the
prosecution case.
8. The decision of this Court in Vijayan @ Puthoor Vijayan v.
State of Kerala [2021 (5) KHC 347] shows the steps to be followed by
Crl. Appeal No. 738/2014 2025:KER:71215
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:
(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;
Crl. Appeal No. 738/2014 2025:KER:71215
(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."
9. 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].
10. 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
Crl. Appeal No. 738/2014 2025:KER:71215
concerned, to prove the tamper-proof despatch of the sample to the
laboratory.
11. The learned counsel for the appellant also pointed out that in
this case, PW4 Excise Inspector who detected the case, has not complied
the mandate of Section 53A of the Abkari Act to draw the representative
sample. In Andikutty v. State of Kerala [2023 KHC 777 = ILR 2023
(4) Ker. 1158], 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. As noticed earlier, in this case, even though Exhibit P8, copy
of forwarding note, is dated 09.12.2009, the sample is seen produced in
the Chemical Examiner's Laboratory at Thiruvananthapuram only on
25.02.2010 and the prosecution has not examined the property clerk of
the court or the excise guard to prove the tamper proof dispatch of the
sample to the laboratory. 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 appellant is entitled for the benefit of reasonable doubt. Since
Crl. Appeal No. 738/2014 2025:KER:71215
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(1) r/w 8(2) of
the Abkari Act. Bail bond executed by the appellant shall stand cancelled
and he is set at liberty forthwith.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
