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Kerala High Court

Baiju vs State Of Kerala on 30 January, 2026

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Crl.R.P No.687 of 2014
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                         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                         PRESENT

                   THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.

         FRIDAY, THE 30TH DAY OF JANUARY 2026 / 10TH MAGHA, 1947

                               CRL.REV.PET NO. 687 OF 2014

  CRIME NO.3/2002 OF Thamarassery Excise Range Office, Kozhikode

           AGAINST THE JUDGMENT DATED 28.02.2014 IN Crl.A NO.403 OF

2010 II ADDITIONAL SESSIONS JUDGE, KOZHIKODE DIVISION, ARISING OUT

OF THE JUDGMENT DATED 21.06.2010 IN SC NO.86 OF 2007 OF ADDITIONAL

ASSISTANT SESSIONS JUDGE-III , KOZHIKODE DIVISION.


REVISION PETITIONER/APPELLANT/ACCUSED:

                   BAIJU
                   AGED 40 YEARS
                   S/O.BALAN, PALARIL VEETTIL, MANGAVU AMSOM,KOZHIKODE
                   TALUK, KOZHIKODE DISTRICT.


                   BY ADV SRI.NIREESH MATHEW


RESPONDENT/RESPONDENT/COMPLAINANT & STATE:

                   STATE OF KERALA
                   REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
                   ERNAKULAM.



OTHER PRESENT:

                   SRI. SANAL P. RAJ, PUBLIC PROSECUTOR


          THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 30.01.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Crl.R.P No.687 of 2014
                                                                    2026:KER:7664


                                               ORDER

The convict in SC No.86 of 2007 on the file of the Additional

Assistant Sessions Judge-III, Kozhikode, filed this revision petition

under Section 397 read with 401 of Cr.P.C. challenging the

judgment dated 21.06.2010 in that Sessions Case, whereby he

was convicted and sentenced to undergo rigorous imprisonment

for two years and to pay fine for Rs.1,00,000/- and in default to

undergo simple imprisonment for six months for the offence under

Section 55(a) of the Kerala Abkari Act and also the judgment dated

28.02.2014 in Crl.A.No.403 of 2010 passed by the 2nd Additional

Sessions Judge, Kozhikode, whereby that appeal filed by the

petitioner was dismissed, confirming the Trial Court judgment.

2. The prosecution case is that on 31.01.2002 at about 2.30

p.m, the petitioner-accused, along with his co-accused, was found

in possession and transporting 840 litres of spirit in 28 Cans

containing 35 litres each in an Ambulance Van bearing

Reg.No.KL11/D-8510 through Kozhikode-Wayanad road in front of

West Coast Fibre Industries at the place Pullanhimedu. The offence

was detected, and the initial formalities were complied by PW1,

the Excise Inspector of Thamarassery. Later, the investigation of

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the offence was conducted and completed by PW6, the Excise

Inspector of Kunnamangalam, who laid the final report before the

competent jurisdictional Magistrate. On receipt of the final report,

the learned Magistrate took cognisance of the offence as C.P.No.27

of 2006. After compying the legal formalities as provided under

Section 207 of the Cr.P.C. by providing copies of the prosecution

records to the accused, the case against the petitioner herein was

committed to the Sessions Division, Kozhikode, under Section 209

of the Cr.P.C. Since the 2nd accused in the crime did not appear

before the Magistrate, the case against him was split up and re-

filed. On receipt of the committal records, the Sessions Judge

numbered case as SC.No.86 of 2007 and made over the same to

the Court of Additional Assistant Sessions Judge-III, Kozhikode,

for trial and disposal.

3. On securing the presence of the accused, the Assistant

Session Judge, after hearing both sides, framed charge for the

offence under Section 55(a) of the Abkari Act to which the accused

pleaded not guilty. Thereafter, from the side of the prosecution,

PWs 1 to 6 were examined, and Exhibits P1 to P8 documents were

marked. MO1 and MO2 material objects were also identified by

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the prosecution witnesses. On completion of the prosecution

evidence, the petitioner-accused was examined under Section 313

(1) of Cr.P.C., and he denied all the incriminating evidence brought

out against him. When the case was posted for defence evidence,

having found it as unfit for acquittal under Section 232 of Cr.P.C,

from the side of the petitioner-accused, DW1 and DW2 were

examined. After hearing both sides and on an appreciation of the

evidence on record, the Trial Court found the petitioner-accused

guilty and sentenced him as mentioned above. The appeal filed by

the petitioner-accused ended in dismissal. Hence, the petitioner-

accused is now before this Court with this revision petition.

4. Heard Adv.Nireesh Mathew, the learned counsel for the

petitioner and Sri.Sanal P.Raj, the learned Public Prosecutor.

5. The learned counsel for the petitioner-accused argued

that there are serious laches in the investigation, which entitle the

petitioner-accused to get an order of acquittal on the ground of

benefit of doubt. The learned counsel pointed out that the offence

was detected by PW1, the Excise Inspector of Thamarassery and

the place of incident is within the limits of the Thamarassery Excise

Range. However, the investigation was conducted by PW6, an

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Excise Inspector of Kunnamangalam, who is an incompetent

officer to conduct the investigation of an offence occured within

the limits of another excise range. Since the investigation was

conducted and the final report was laid by an incompetent officer,

for that sole ground, the petitioner-accused is entitled to be

acquitted. The learned counsel further pointed out that the

samples were sent to the laboratory for chemical examination on

01.02.2002 from the jurisdictional Court. But it reached the

chemical examination laboratory only on 04.04.2002 as per Ext.P8

chemical examination report. Who was in custody of the property

during this time gap is not explained by the prosecution.

Therefore, the genuineness of the sample reached the laboratory

is doubtful, and for that reason also the petitioner-accused is

entitled to be acquitted.

6. The learned Public Prosecutor would submit that, only for

the reason that there is delay in reaching the sample to the

laboratory, the benefit of doubt may not be given to the petitioner,

since the investigation was properly conducted and convincing

evidence was adduced before the trial court, which was accepted

by the trial court as well as the appellate court.

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7. I have carefully analysed the rival submissions made

at the Bar and perused the materials placed on record.

8. This Court in Shibu Jacob v. Sub Inspector of Police

[2023 (7) KHC 394] held thus:

"Yet another contention raised by the revision petitioners is that in Ext.P1, no specimen seal is seen affixed. It is also contended that the forwarding note is not seen marked. The purpose of putting the specimen seal impression in the seizure mahazar is to give an opportunity to the court to verify the same and satisfy that the seized substances reach the court without any tampering. The specimen seal is provided in the forwarding note so as to enable the chemical examiner to compare it with the seal on the sample and come to the conclusion that it reached the laboratory without any tampering. In this case, no specimen seal is seen affixed in the seizure mahazar and the forwarding note itself is not produced and marked. This court in Vijayan v State of Kerala, (2021 (5) KLT 321), has enumerated the steps to be followed by the officer collecting the sample, the Thondy Clerk who is authorized to receive the thondy and the measures to be ensured by the chemical examiner and held that the specimen seal shall be affixed on the mahazar, sample bottle, bottle containing the remaining part of the contraband and the forwarding note and further held that while collecting sample the officer shall describe the nature of the specimen seal in the mahazar. In the present case, the forwarding note by which the sample of the contraband

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was sent for chemical analysis is also not produced and marked. In Nadarajan v. State of Kerala, [2020 (3) KLT Online 1030], it is held that when the specimen seal is not affixed on the seizure mahazar and in the forwarding note (in the present case no forwarding note is produced and marked), there is no assurance that the very same sample which was allegedly drawn at the spot of occurrence was produced before the court and sent for analysis as per the forwarding note and it has reached the laboratory in a tamper proof condition and tested there. A similar view was taken by this court in Gopalan v. State of Kerala, [2016 (3) KLT SN 16], Prakasan v. State of Kerala [2016 (1) KLT SN 96 (C.No.96)], Joseph v State of Kerala [2009 (4) KHC 537]. Ajayakumar v. State of Kerala [2021 KHC 3872], Gireesh @ Manoj v. State of Kerala [2019 KHC 655], Faijas v. State of Kerala (2020 KHC 5259) and Ramachandran v. State of Kerala, (2021 (1) KLT 793]. This court in Moothedath Sivadasan v. State of Kerala, [2021 (1) KLT 744] has held that since no specimen impression of seal is seen affixed in the seizure mahazar it is very difficult to hold that the sample of the contraband allegedly seized from the accused has in fact reached the Chemical Examiner for analysis. This court in Sasidharan v. State of Kerala, [2007 (1) KLT 720] has considered and emphasized the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hand of the chemical examiner in a tamper - proof condition. Relying on the judgment of the Apex Court in State of Rajasthan v. Daulat Ram, [AIR 1980 SC 1314], this

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court in Sasidharn's case supra held that when the sample changed several hands before reaching the chemical examiner, the prosecution has to necessarily examine the various officials who handled the sample to prove that while in their custody, the seal of the sample has not been tampered with. The Apex Court in Vijay Pandey v. State of U.P., (AIR 2019 SC 3569] has 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 one tested are to be correlated. A similar view was taken by this court in Udayan v. State of Kerala, [2023 (1) KLT 371]. In view of the lacuna pointed out above, it is to be held that the prosecution could not establish the link evidence connecting the accused with the contraband seized and the sample analysed in the laboratory and in the said circumstances, the revision petitioners are entitled to the benefit of doubt."

(underline supplied)

9. The above legal position was reiterated by this Court in

Panikkan Veettil Kunhiraman v. State of Kerala [2025 KHC

OnLine 11230].

10. As far as the delay in sending the samples to the

laboratory concerned, this Court in Sugathan @ Kunjankilli v.

State of Kerala [2023 KHC Online 9345] held thus:-

"10. Admittedly, though the forwarding letter from the court is dated 19.10.2001, the sample reached the chemical

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analysis laboratory only on 28.10.2021. The forwarding note does not contain the date on which the sample was forwarded for chemical analysis and also does not contain the name of the Excise Guard through whom the samples were sent to the chemical analysis laboratory. In view of the same, there is no conclusive proof regarding the date of despatch to the laboratory, and through whom the same was sent to the laboratory. Therefore, in view of the said factual circumstances and the decisions of this court cited supra, it was incumbent on the part of the prosecution to examine either the property clerk and the guard through whom the sample was sent for chemical analysis so as to prove the date of despatch of sample and also regarding the safe custody of the samples till it was sent for chemical analysis. Having not done so, the said lacuna is fatal to the case of the prosecution". (underline supplied)

11. Again in Anandan M. v. State of Kerala [2025 KHC

Online 11219], this Court held thus:-

"10. It is pertinent to note that the verification of Ext. P5 mahzar dated 19.09.2007 prepared from the place of occurrence and Ext.P7 property list dated 20.09.2007 produced by the investigating officer before the trial court do not contain the specimen seal of the detecting officer. In Girish v. State of Kerala [2023 (7) KHC 435] this Court held that the absence of impression of specimen seal in the mahazar and property list and nondisclosure of the name of the Police Constable in the forwarding note and the delay in producing the sample before the Chemical Examination

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Laboratory are circumstances to doubt the identity of the sample drawn and the sample sent for chemical analysis. Therefore, it cannot be said that the samples drawn from the contraband articles reached the Chemical Examination Laboratory in a tamper - proof condition. The possibility of tampering with the samples cannot be ruled out in such circumstances". (underline supplied)

12. In the instant case, detection of the offence was on

31.01.2002 at 2.30 p.m. According to the prosecution, samples

were drawn from the place of occurrence itself when the

contraband article was seized by PW1. However, the specimen seal

of the officer who had drawn the sample and sealed the same did

not find the place in Ext.P3, Mahazar prepared from the place of

occurrence and in Ext.P5 property list. Moreover, as submitted by

the learned counsel for the petitioner, there is delay in reaching

the sample to the laboratory. Though the samples were sent from

the Court on 01.02.2002, as evident from Ext.P6 forwarding note,

the same reached the laboratory only on 04.04.2002, as evident

from the endorsement in Ext.P8 chemical examination report. This

delay is also not explained by the prosecution. The property clerk

or the officer who carried the sample from the Court to the

Laboratory was not examined to prove the proper custody and to

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explain the delay.

13. Viewed in the light of judgments referred to supra, it is

only to be held that the delay in sending the sample to the

laboratory and the non-affixture of the specimen seal of the officer

concerned in the property list, as well as in the mahazar in the

present case are vital to the prosecution case.

14. Apart from all, as noted above, the detection of the

above offence is by PW1, an Excise Inspector of Thamarassery

from the limits of Thamarassery Excise range. The crime was

registered in that Excise Range Office. However, from the

evidence of PW6, it can be gathered that the investigation was

continued and completed by PW6, and he laid the final report

before the jurisdictional Court, who is an Excise Inspector of

Kunnamangalam Excise Range. In a similar situation as in the

present case in Balachandran v. State of Kerala [2020 (3)

KHC 697], this Court held thus:-

"13. When the accused and articles were produced before the jurisdictional Excise Inspector, he conducted the preliminary investigation. He prepared Ext. P3 occurrence report, Ext.P4 list of thondi and Ext.P5 forwarding note. After that, the investigation is conducted by PW4, the Excise

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Inspector, Aluva Excise Range. He did further investigation after the investigation conducted by charge witness No.11. Charge witness No.11 was not available for examination because he was on long leave. Hence, Exts.P3 to P5 were marked through PW4. Thereafter, the charge was verified and final report was filed by PW5, who is the Circle Inspector of Aluva Excise Range. The contention of the appellant is that, the Excise Inspector or the Circle Inspector of Aluva Excise Range have no jurisdiction to investigate this case and file the final report before the court because there was no authorization to them under S.4 of the Abkari Act. I think there is some force in the contention of the appellant. Admittedly, S. R. O. No. 234/67 is applicable during the period in which the arrest, seizure and the investigation in this case happened. S. R. O. No. 234/57 was superseded only on 08/05/2009 as per S. R. O. No. 361/2009.

14. S. R. O. No. 234/67, which is extracted above, will show that the investigation and final report under S.50 of the Abkari Act can be submitted by all the Officers of the Excise department, not below the rank of Excise Inspectors within the areas for which they are appointed. 'Abkari Officer' is defined as per S.3(2) of the Abkari Act which is extracted hereunder:

"Abkari Officer: means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under S.4 or 5."

S. R. O. No. 234/67 was issued by the Government as per S.4 of the Kerala Abkari Act. As per the above notification,

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all officers of the Excise Department not below the rank of Excise Inspector are authorized to perform the acts and duties mentioned in S.40 to 53 within the area for which they are appointed. Similarly, the Commissioner of Excise, the Joint Commissioner of Excise, Deputy Commissioners of Excise and all Assistant Commissioners of Excise to be Abkari officers under their respective denominations for the purpose of S.31, S.32, S.34, S.35, S.38, S.39, S.53, S.59, S.67 and S.67A of the Abkari Act and to discharge of the duties conferred and imposed on Abkari officers in the Sections aforesaid. The Commissioner of Excise and the Joint Commissioner of Excise are having jurisdiction throughout the State. But, Deputy Commissioners of Excise and the Assistant Commissioners of Excise have jurisdiction only within the area for which they are appointed. Circle Inspectors of Excise, Excise Inspectors, attached to the circle and Excise Inspectors in charge of Ranges will be Abkari officers under their respective denominations for the purpose of S.31, S.32, S.34, S.35, S.38, S.39, S.53 and S.59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari officers in the Sections aforesaid within their respective jurisdiction. Similarly, clause 11, 12 and 13 of SRO No. 234/67 give powers to different officers within their respective jurisdiction or within the area for which they are appointed.

15. Therefore, it is clear that all Excise Department officers not below the rank of Excise Inspector can file a final report under S.50 only if the detection is within the area for which

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they are appointed. Clause (8) of SRO No. 234/67 is clear about that. Ofcourse, in the proviso to SRO No. 234/67, it is stated that, with reference to S.31 and S.34 of the Act, there shall be no limit of jurisdiction within the Kerala State for the Abkari and other Department Officers named therein; but all persons arrested and all seizures made thereunder shall, without delay, be made over to the Excise Officer possessing local jurisdiction.

16. Admittedly, in this case, final report is filed by PW5 who is the Excise Circle Inspector of Aluva Excise Range. Admittedly, arrest and seizure of the contraband article in this case happened within the jurisdiction of Excise Range, North paravur. In such a situation, PW5 has no authority or authorization to submit the final report in this case. Only charge witness No.11, the Excise Inspector of North Paravur Excise Range or any competent officers of Excise Range, North Paravur can conduct investigation and submit final report in this case. In this case, an incompetent officer filed the final report under S.50 of the Abkari Act. It is a fundamental defect that will go to the root of the case. The Magistrate cannot take cognizance based on a final report submitted by an incompetent officer".

(Underline supplied)

15. When the incompetent Officer conducts the

investigation and lays the final report, the accused cannot be held

guilty based on that final report. For the aforesaid reasons, the

petitioner-accused is entitled to be acquitted of the offence

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charged against him.

In the result, this Criminal Revision Petition is allowed by

setting aside the judgment dated 21.06.2010 in SC No.86 of 2007

of the Additional Assistant Session Judge-III, Kozhikode and also

the judgment dated 28.02.2014 in Crl.A.No.403 of 2010 of the 2nd

Additional Sessions Judge, Kozhikode and the petitioner-accused