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Kerala High Court
Musthafa vs State Of Kerala on 27 March, 2026
2026:KER:27375
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
FRIDAY, THE 27TH DAY OF MARCH 2026 / 6TH CHAITHRA, 1948
CRL.REV.PET NO. 895 OF 2017
AGAINST THE JUDGMENT DATED 26.03.2013 IN SC NO.67 OF
2003 OF ASSISTANT SESSIONS COURT, SULTHANBATHERY ARISING
OUT OF THE JUDGMENT DATED 12.01.2017 IN Crl.A NO.40 OF 2013
OF ADDITIONAL SESSIONS COURT - II, KALPETTA
REVISION PETITIONER/ACCUSED/APPELLANT:
MUSTHAFA,S/O.BHAVA, KUTHIRAPARAMBIL HOUSE,
MUNDERI, KALPETTA POST
BY ADV SRI.LIFFY P. FRANCIS
RESPONDENT/COMPLAINANT/RESPONDENT:
STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF
POLICE, BATHERI POLICE STATION, THROUGH PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
ADV. SRI.ALEX M.THOMBRA
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
HEARING ON 27.03.2026, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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ORDER
This Criminal Revision Petition has been filed by the revision
petitioner under Section 397 r/w Section 401 of the Code of Criminal
Procedure, challenging the conviction and sentence passed against him for
the offence punishable under Section 55(a) of the Abkari Act by the
Assistant Sessions Judge, Sultan Batheri as per the judgment dated
26.03.2013 in S.C No.67/2003, which was confirmed in appeal by the
Additional Sessions Court - II, Kalpetta, as per judgment dated 12.01.2017
in Crl. Appeal No. 40/2017. The revision petitioner is the first accused in
the said case, and the remaining accused were acquitted by the trial court.
2. The prosecution case is that on 28.03.2001, at 11.15 p.m, the
first accused along with the third accused was found transporting 735 litres
of rectified spirit in a Maruti Gypsy vehicle bearing Reg. No. TSK 4931
through Sulthanbatheri - Mysore public road and the second and the fourth
accused were found travelling in a motorcycle bearing Reg. No. KL 12 A
6011 as guides escorting the Gypsy vehicle, which was driven by the first
accused and in which the spirit was transported.
3. During trial, from the side of the prosecution, PW1 to PW9
were examined and marked Exts.P1 to P19. MO1 to MO5 were exhibited
and identified. After the closure of the prosecution evidence, the accused
were questioned under Section 313 Cr.P.C and during which they denied all
the incriminating circumstances and evidence brought out. As it was not a
fit case to acquit the accused under Section 232 of Cr.P.C, they were
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directed to enter on their defence and to adduce any evidence that they
may have in support thereof. However, from the side of the defence, no
evidence whatsoever was adduced.
4. Finally, the learned Assistant Sessions Judge, after hearing
both sides, found the first accused guilty of the offence punishable under
Section 55(a) of the Abkari Act and convicted him. The remaining accused
were acquitted. The first accused was sentenced to undergo simple
imprisonment for one year and to pay a fine of Rs.1,00,000 for the offence
for which he was found guilty. In default of payment of fine, he was
sentenced to undergo simple imprisonment for three months.
5. The accused carried the matter in appeal by filing Crl.Appeal
No.40/2013. The learned Additional Sessions Judge -II, Kalpetta, who heard
the appeal, confirmed the finding of the trial court, but modified the
sentence by reducing it to simple imprisonment for three months and to a
fine of Rs.1,00,000/- . In default of payment of the fine, the appellate court
directed the accused to undergo simple imprisonment for one month.
6. Heard Sri.Liffy P. Francis, the learned counsel for the revision
petitioner and Sri.Alex M. Thombra, the learned Public Prosecutor, and
perused the records.
7. The learned counsel for the revision petitioner submitted that
the accused is innocent of the allegations levelled against him, and both the
trial court and the appellate court committed grave illegality and
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irregularity in appreciating the facts and evidence brought out in this case
correctly. According to the learned counsel, there is absolutely no material
to show that the sample of the spirit that got analysed in the chemical
examination laboratory is the very same sample drawn from the contraband
seized in this case. It is further pointed out that in the seizure mahazar as
well as in the property list, the sample seal or the specimen impression of
the seal allegedly used is nowhere provided. It was further submitted that
in the copy of the forwarding note, which is a crucial document in an Abkari
case, neither the sample seal nor the specimen impression of the seal
allegedly used in sealing the sample bottles is provided. In short, the crux
of the argument of the learned counsel for the revision petitioner is that
there are patent flaws in the manner in which the seizure and sampling
procedures were carried out in this case, rendering no guarantee that the
sample produced before the court as well as reached for examination in the
chemical examination laboratory is the same sample collected from the spot
of detection.
8. Per contra, the learned Public Prosecutor would contend that
all the procedural formalities to avoid future allegations of manipulation
were scrupulously complied with in this case and hence warrant no
interference.
9. A perusal of the record reveals that, in order to prove the
charge levelled against the accused, the prosecution mainly relies on the
evidence of the detecting officer and the documentary evidence produced
in this case. This case was detected by the Sub-Inspector of Police,
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Sulthanbatheri Police Station. When the detecting officer was examined as
PW1, he had narrated the entire sequence of events relating to the
detection of the contraband and its seizure procedures. The seizure
Mahazar allegedly prepared contemporaneous with the detection of the
contraband was marked as Ext. P2. Notably, the independent witness cited
by the prosecution and examined as PW5 also supported the prosecution
case to a large extent.
10. However, in a case of this nature, it is incumbent upon the
prosecution to satisfy the court that all the procedures relating to the
search, seizure, and sampling of the contraband were carried out in
foolproof manner, thereby ruling out any possibility of tampering.
Nevertheless, in the case at hand, a bare perusal of Ext.P2 Mahazar reveals
that neither the sample seal nor the specimen impression of the seal,
allegedly used by the detecting officer for sealing the sample, finds a place
in the Mahazar. The absence of a sample seal or specimen impression of
the seal in the seizure Mahazar is certainly a circumstance to doubt the
identity of the sample drawn and the identity of the sample produced
before the court.
11. Likewise, in Ext.P2 seizure Mahazar, nothing is mentioned
about the procedures of sampling and sealing which were adopted. During
the examination before the court, PW1, the detecting officer, had not given
any evidence regarding the nature of the seal used for sealing the samples,
as well as the residue of the contraband allegedly seized in this case. In
Ext.P4, the property list, the specimen seal has not been provided.
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This omission may create scope for allegations of manipulation and
tampering.
12. A perusal of the forwarding note, which was marked as
Ext.P15, reveals that the sample seal or specimen impression of the seal
does not find a place therein. The purpose of affixing the seal in the
forwarding note is to enable the chemical examiner to compare the seal
found on the sample with the specimen seal or sample seal provided in the
forwarding note. Only upon such comparison can the chemical examiner
confirm that the sample received for analysis is the same one forwarded
from the court. In Rajamma v. State of Kerala [2014 (1) KLT 506], this Court
held that in the absence of convincing evidence as to the production of the
specimen impression of the seal or the sample seal to the chemical
examiner, no evidentiary value can be attributed to the chemical analysis
report.
13. Therefore, I have no hesitation in holding that the
prosecution failed to prove that the procedures of seizure and sampling in
this case were carried out in a foolproof manner. In the absence of
convincing evidence regarding proper sampling and sealing, it could not be
said that the sample collected at the time of detection is the very same
sample that was later examined in the chemical examiner's laboratory. In
the above circumstances, it is found that the prosecution has not succeeded
in proving the case against the accused beyond a reasonable doubt.
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Resultantly, the Revision Petition is allowed, and the judgment of
conviction and the order of sentence passed against the revision
petitioner/first accused for the offence punishable under Section 55(a) of
Abkari Act is set aside, and he is acquitted. Fine amount, if any, has been
deposited by the revision petitioner/first accused; the same shall be
refunded to him in accordance with law.
Sd/-
JOBIN SEBASTIAN
JUDGE
vdv
