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Kerala High Court
Ashoka.T vs Excise Inspector And Another on 20 January, 2026
2026:KER:3962
Crl.R.P.No.594/2011
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
TUESDAY, THE 20TH DAY OF JANUARY 2026 / 30TH POUSHA, 1947
CRL.REV.PET NO. 594 OF 2011
AGAINST THE JUDGMENT DATED 25.01.2011 IN CRL.A NO.272 OF
2008 OF ADDITIONAL DISTRICT COURT (ADHOC), KASARAGOD ARISING
OUT OF THE JUDGMENT DATED 30.08.2008 IN SC NO.608 OF 2006 OF
ASSISTANT SESSIONS COURT, KASARAGOD
REVISION PETITIONER/APPELLANT/ACCUSED:
ASHOKA.T,
S/O. SANJEEVA SUVARNA,
THAMBINADUKAM, ADOOR,
URDOOR.P.O,
ADOOR VILLAGE,
KASARAGOD TALUK.
BY ADV SRI.T.G.RAJENDRAN
RESPONDENT/COMPLAINANT & STATE:
1 EXCISE INSPECTOR,
BADIADKA EXCISE RANGE
671121.
2 STATE OF KERALA REPRESENTED BY
PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
SRI SUDHEER.G, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 16.01.2026, THE COURT ON 20.01.2026 PASSED THE FOLLOWING:
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Crl.R.P.No.594/2011
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ORDER
The concurrent findings of the Assistant Sessions Court and the
Additional Sessions Court, Kasaragod, in S.C.No.608/2006 and
Crl.A.No.272/2008, respectively, convicting and sentencing the petitioner
for the commission of offence under Section 55(a) of the Abkari Act,
1077, are under challenge in this revision filed by the accused in the said
case.
2. The prosecution case is that on 09.02.2005, at about
02:00 p.m., the petitioner was found to have been in possession of 30
packets each containing 100 ml of Karnataka made arrack, at a place
called Korikandam in Aadoor village, Kasaragod.
3. The offence is said to have been detected by the Preventive
Officer of Excise Range Office, Badiadka, and his team during the course
of their patrol duty, on 09.02.2005. It is stated that the contraband
arrack contained in 30 plastic packets kept inside a plastic bag were
recovered from the petitioner and he was arrested on the spot. The
Detecting Officer claims to have collected sample on the spot. The rest
of the investigation has been conducted by the Excise Inspector of
Badiadka Excise Range.
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4. In the trial before the learned Assistant Judge, four
witnesses were examined from the part of the prosecution as PW1 to
PW4 and eight documents were marked as Exts P1 to P8. Relying on the
aforesaid evidence, the learned Assistant Sessions Judge convicted the
petitioner for the offence under Section 55(a) of the Abkari Act,1077, and
sentenced him to undergo rigorous imprisonment for two months, and to
pay a fine of Rs.1,00,000/- with a default clause of further rigorous
imprisonment for one month. Though the petitioner challenged the
aforesaid verdict before the Sessions Court, Kasaragod, the learned
Additional Sessions Judge, who considered the appeal, declined to
interfere with the findings of the learned Assistant Sessions Judge.
Accordingly, the appeal was dismissed, confirming the conviction and
sentence awarded by the Trial Court. Aggrieved by the above concurrent
verdicts of the courts below, the petitioner is here before this Court with
this revision.
5. Heard the learned counsel for the petitioner and the learned
Public Prosecutor representing the State of Kerala.
6. As already stated above, the criminal prosecution has been
launched against the petitioner pursuant to the alleged seizure of arrack
contained in 30 plastic packets of 100 ml capacity each by the Preventive
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Officer of Excise Range Office, Badiadka, and his team on 09.02.2005.
According to the prosecution, the Preventive Officer had collected sample
in a bottle of 375 ml capacity from three packets of arrack. However,
Ext P2 mahazar prepared by the Preventive Officer does not contain the
necessary particulars to show that the collection of sample was in
accordance with the prescribed procedures of law. Though it is stated
that the sample bottle was sealed then and there, there is absolutely no
indication anywhere in the prosecution records about the seal impression
used by the above officer. Even in the testimony of the above Preventive
Officer before the Trial Court as PW1, he did not state about the seal
impression used for securing the sample tamper proof.
7. The aforesaid sample bottle is said to have been transmitted
to the Judicial First Class Magistrate Court, Kasaragod, vide Ext P4
property list. However, Ext P4 also does not disclose the seal impression
affixed by PW1 in the sample bottle. There is absolutely no evidence
adduced by the prosecution to show that the staff concerned of the
Judicial First Class Magistrate Court, Kasaragod, received the above
sample bottle after verifying and cross checking the seal impression
affixed in it with any specimen seal impression, and ensuring that it was
tamper proof.
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8. Though it is stated that the sample bottle was sent to the
Chemical Examiner's Laboratory from the Judicial First Class Magistrate
Court, Kasaragod, there is absolutely no evidence adduced by the
prosecution to show that the staff concerned took the necessary
measures to ensure that the said bottle is transmitted in a tamper proof
condition to the said laboratory. The forwarding note which is marked as
Ext P5 contains two different seal impressions, but it is not stated as to
which of the above seals was affixed in the sample bottle when it was
despatched to the Chemical Examiner's Laboratory. Thus, it could be
seen that there is total absence of evidence to establish the cardinal
requirement that the sample bottle was received at the Judicial First
Class Magistrate Court, Kasaragod, in a tamper proof condition, and that
it was sent to the Chemical Lab in the same condition in a foolproof
manner. The drawback in the above regard is fatal for the prosecution in
a case like this.
9. It is also pertinent to note that the disposal of the remaining
arrack was also not done in a manner as prescribed by law. Ext P7
series are the documents relied on by the prosecution to show that the
remaining arrack contained in 27 plastic packets were disposed of in
accordance with the provisions contained in Section 53A of the Abkari
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Act, 1077. However, the certificate seal affixed in Ext P7(a) showing the
inventory verification by the Magistrate is hopelessly insufficient to
establish the requisite particulars of Section 53A of the Abkari Act, 1077.
There is absolutely nothing on record to show that the learned
Magistrate had verified the specimen seal impression and ensured that it
tallied with the seal impression in the contraband item placed before
him. Nor had the learned Magistrate stated that Ext P7(d) photograph
was taken in his presence. So also, it is apparent from the records that
representative samples were not taken from the contraband item. Thus,
it could be seen that the prosecution has failed to establish that the
aforesaid packets of arrack related to the seizure said to have been made
by PW1 from the petitioner on 09.02.2005. In the above circumstances,
it could only be held that the conviction and sentence awarded by the
courts below upon the petitioner, are patently illegal and liable to be set
aside in exercise of the revisional powers of this Court.
In the result, the petition stands allowed as follows:
(i) The judgments rendered by the Assistant Sessions Court and
Additional Sessions Court, Kasaragod, in S.C.No.608/2006 &
Crl.A.No.272/2008, respectively, convicting and sentencing the
petitioner for the commission of offence under Section 55(a) of
the Abkari Act, 1077, are hereby set aside.
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(ii)The petitioner/accused is acquitted of the aforesaid offence.
(iii)The bail bond executed by the petitioner/accused stands
canceled and he is set at liberty.
Sd/-
G. GIRISH, JUDGE
DST
