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Kerala High Court
Balan vs State Of Kerala on 31 March, 2026
2026:KER:28719
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 31ST DAY OF MARCH 2026 / 10TH CHAITHRA, 1948
CRL.REV.PET NO. 856 OF 2017
AGAINST THE JUDGMENT DATED 08.11.2010 IN Crl.A NO.335 OF
2009 OF ADDITIONAL DISTRICT COURT (ADHOC), MAVELIKKARA ARISING OUT
OF THE JUDGMENT DATED 17.07.2009 IN SC NO.485 OF 2005 OF ASSISTANT
SESSIONS COURT, CHENGANNUR
REVISION PETITIONER/APPELLANT/ACCUSED:
BALAN
AGED 60 YEARS, S/O. MADHAVAN,
PARAPPATTU VEETTIL, MALAKKARA MURI,
ARANMULA VILLAGE, KOZHENCHERRY TALUK,
PATHANAMTHITTA DISTRICT.
BY ADV
SRI.K.JAYARAJ
RESPONDENTS/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY SUB-INSPECTOR OF POLICE,
CHENGANNUR, THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
BY ADV.
SMT.MAYA M.N, PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
31.03.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Crl.R.P.No.856 of 2017
:2:
JOBIN SEBASTIAN, J
......................................................
Crl.R.P.No.856 of 2017
......................................................
Dated this the 31st day of March, 2026
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 judgment of
conviction and the order of sentence passed against him for
the offence punishable under Section 58 of the Abkari Act by
the Assistant Sessions Judge, Chengannur as per the judgment
dated 17.07.2009 in S.C.No.485/2005, which was confirmed in
appeal by the Additional Sessions Judge, Mavelikkara, as per
judgment dated 08.11.2010 in Crl. Appeal No.335/2009. The
revision petitioner is the sole accused in the said case.
2. The prosecution case is that on 05.10.2003, at 05.30
p.m., the accused was found in possession of 2.750 liters of
illicit liquor for the purpose of sale in the hotel run by him,
bearing No.6/149, located at Angadical Muri in Chengannur
municipality. Thus, the accused is alleged to have committed
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the offence punishable under Section 58 of Abkari Act.
3. During trial, from the side of the prosecution, PW1 to
PW5 were examined and marked Exts.P1 to P9. MO1 to MO4
series were exhibited and identified. After the closure of the
prosecution evidence, the accused was questioned under
Section 313 Cr.P.C., during which he denied all the
incriminating circumstances brought out against him in
evidence. As it was not a fit case to acquit the accused under
Section 232 of Cr.P.C, he was directed to enter on his defence
and to adduce any evidence that he 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 accused guilty of the offence
punishable under Section 58 of Abkari Act and convicted him.
The accused was sentenced to undergo rigorous imprisonment
for five months and to pay a fine of Rs.1,00,000/- for the
offence for which he was found guilty. In default of payment of
the fine, the accused was sentenced to undergo simple
imprisonment for three months.
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5. The accused carried the matter in appeal by filing
Crl.Appeal No.335/2009. The learned Additional Sessions
Judge, Mavelikkara, who heard the appeal, confirmed the
finding and the sentence imposed on the accused by the trial
court.
6. Heard Sri. K. Jayaraj, the learned counsel for the
revision petitioner and Smt.Maya M. N., the learned Public
Prosecutor, and also perused the records.
7. The learned counsel for the revision petitioner
submitted that the accused is totally innocent of the allegations
levelled against him, and both the trial court and the appellate
court committed grave illegality and irregularity in appreciating
the facts and evidence brought out in this case. According to
the learned counsel, there is absolutely no material to show
that the sample of the illicit liquor that got analyzed in the
chemical examination laboratory is the very same sample
drawn from the contraband seized in this case. The learned
counsel for the revision petitioner further pointed out that
there are patent flaws in the manner in which the seizure and
sampling procedures were carried out, as well as in the
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despatch of the sample from the court to the chemical
examination laboratory, where the same was finally analyzed.
Hence, highlighting some procedural latches, the revision
petitioner sought interference in the impugned judgment.
8. Per contra, the learned Public Prosecutor would
contend that all the procedural formalities to avoid future
allegations of manipulation and tampering were scrupulously
complied with in this case, and hence the impugned judgment
requires 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 marked in this case, which are allegedly
prepared contemporaneously with the detection of this case.
This case was detected by the Sub Inspector of Police,
Chengannur. When the detecting officer was examined as PW4,
he had narrated the entire sequence of events relating to the
detection of the liquor and its seizure procedures. The seizure
mahazar allegedly prepared contemporaneously with the
detection of the liquor was marked as Ext.P3.
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10. An independent witness cited by the prosecution to
prove the alleged detection of the liquor was examined as
PW1. However, he did not support the prosecution case by
deposing that he did not witness the seizure of the liquor in
this case.
11. While considering the question whether the said
hostility shown by the independent witness had any serious
impact in this case, it is to be borne in mind that it is a
common experience that independent witnesses in Abkari
cases are turning hostile to the prosecution invariably in
almost all cases for the best reasons only known to them.
However, through the catena of judicial pronouncements, it is
well settled that the hostility shown by an independent witness
to a seizure mahazar is of little significance if the evidence of
official witnesses, including the detecting officer, is convincing
and reliable. Moreover, in the case at hand, there is nothing to
show that the detecting officer had any apparent motive to
falsely implicate the accused in a case of this nature. Likewise,
even the accused does not have a case that PW4, the Sub
Inspector of Police, Chengannur, bore any animosity or grudge
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towards him to implicate him in a case of this nature.
Therefore, I am of the considered view that there is nothing
wrong in placing reliance on the testimony of PW4, the
detecting officer.
12. However, when a Court is called upon to rely solely
on the evidence of the detecting officer, it is incumbent upon
the court to act with much care and circumspection while
analyzing evidence. Therefore, it is imperative 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 a foolproof manner, thereby ruling out any
possibility of tampering. Nevertheless, in the case at hand, a
bare perusal of Ext.P3 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 it.
The absence of sample seal or the specimen impression of the
seal in the seizure mahazar is certainly a circumstance to
doubt the identity of the sample drawn from the spot and the
identity of the sample produced before the court.
13. Likewise, in Ext.P3 seizure mahazar, nothing is
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mentioned about the procedures of sampling and sealing that
were adopted. During the examination before the Court, PW4,
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 liquor allegedly seized in this case.
14. Notably, from a perusal of the impugned judgment, it
is discernible that the copy of the forwarding note is not seen
marked in this case. The non-production of the forwarding note
is undoubtedly fatal to the prosecution. Only when the same is
produced, the court can verify whether it contains the
specimen impression of the seal or the sample seal that was
meant to help the chemical examiner to compare with the seal
found on the sample. In the absence of the copy of the
forwarding note, it is impossible to enter into a conclusion that
the sample collected from the spot is the very same sample
that was ultimately examined in the laboratory.
15. Therefore, I have no hesitation in holding that the
prosecution has failed to prove that the procedures of seizure
and sampling in this case were carried out in a foolproof
manner so as to rule out possible allegations of manipulations
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and tampering in the future. In the absence of convincing
evidence regarding proper sampling and sealing, it cannot be
safely concluded that the sample collected at the time of
detection is the very same sample that was later examined in
the chemical examination laboratory. In the above
circumstance, it is found that the prosecution has not
succeeded in proving the case against the accused beyond a
reasonable doubt.
Resultantly, the Revision Petition is allowed, and the
judgment of conviction and the order of sentence passed
against the revision petitioner/accused for the offence
punishable under Section 58 of the Abkari Act are set aside,
and he is acquitted. Fine amount, if any, has been deposited by
the revision petitioner/accused, the same shall be refunded to
him in accordance with the law.
Sd/-
JOBIN SEBASTIAN
JUDGE
akj
