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2025 DIGILAW 1947 (KER)

Kunjumon S/o Leni v. State of Kerala

2025-07-11

JOBIN SEBASTIAN

body2025
JUDGMENT : JOBIN SEBASTIAN, J. 1. The accused Nos. 1 and 2 in S.C.No.1204/2004, on the file of Additional District and Sessions Judge (Fast Track Court-I), Thiruvananthapuram, has preferred this appeal challenging the judgment of conviction and order of sentence passed against them for the offence punishable under Section 55 (a) of the Abkari Act. 2. The prosecution allegation in brief is that, on 07.01.2002, at 7.30 a.m., at Puthennada in Anchuthengu desom, the accused Nos. 1, 2 and 3 were found in possession of 10 litres of spirit in contravention of the provisions of the Abkari Act and thereby committed an offence punishable under Section 55 (a) of the Abkari Act. 3. Upon completion of the investigation, the final report was laid before the Judicial First Class Magistrate Court, Varkala. Being satisfied that the case is one exclusively triable by a court of Session, the learned Magistrate, after complying with all legal formalities, committed the case to the Court of Session, Thiruvananthapuram, under Section 209 of Cr.PC. The learned Sessions Judge, having taken cognizance of the offence made over the case to the Additional Sessions Court, Thiruvananthapuram for trial and disposal. On the appearance of the accused before the trial court, the learned Additional Sessions Judge, after hearing both sides under Section 227 of Cr.P.C. and upon a perusal of the records, framed a written charge against the accused for an offence punishable under Section 55 (a) of the Abkari Act . When the charge was read over and explained to the accused, all of them pleaded not guilty and claimed to be tried. 4. The prosecution in its bid to prove the charge levelled against the accused had altogether examined five witnesses as PW1 to PW5, and marked Exts.P1 to P9. MO1 and MO2 were identified and exhibited. Exts.X1 & X2 were marked as court exhibits. After the completion of prosecution evidence, the accused were questioned under Section 313 Cr.P.C., during which they denied all the incriminating materials brought out against them in evidence. On finding that the accused could not be acquitted under Section 232 of Cr.P.C., they were called upon to enter on their defence and adduce any evidence they may have in support thereof. But no evidence, whatsoever, was adduced from the side of accused. 5. After trial, the third accused was found not guilty and acquitted. On finding that the accused could not be acquitted under Section 232 of Cr.P.C., they were called upon to enter on their defence and adduce any evidence they may have in support thereof. But no evidence, whatsoever, was adduced from the side of accused. 5. After trial, the third accused was found not guilty and acquitted. However, accused Nos.1 and 2 were found guilty of the offence punishable under section 55(a) of the Abkari Act , and they were convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1 lakh each. In default of payment of the fine, they were ordered to undergo simple imprisonment for a further period of one year. Assailing the said judgment of conviction and the order of sentence passed, the present appeal has been preferred. 6. I heard learned counsel for the appellants and the learned Public Prosecutor. 7. The learned counsel for the appellants submitted that the accused are innocent of the allegations levelled against them and that they were falsely implicated in this case. According to the counsel, the accused had no connection whatsoever with the contraband allegedly seized in this case, and they were implicated based on surmises and conjectures. According to the counsel in the case at hand, there is absolutely no material to show that the sample of the spirit that got analyzed in the laboratory is the very same sample drawn from the contraband seized in this case. It is pointed out that, in the Mahazar, property list as well as in the forwarding note, the sample seal or specimen impression of the seal allegedly used is nowhere affixed. In short, the crux of the argument of the learned counsel for the appellants is that there is a patent flaw 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. 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 the impugned judgment warrants no interference. 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 the impugned judgment warrants no interference. 8. 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 Circle Inspector of Attingal Excise Office on 07.01.2002. When the detecting officer was examined as PW2, he narrated the entire sequence of events relating to the detection of the contraband and its seizure procedures. The seizure Mahazar prepared contemporaneous with the detection of the contraband was marked as Ext. P5. 9. This is the case in which no independent witnesses were examined from the side of the prosecution to prove the detection. The prosecution relies on the evidence of the detecting officer and other official witnesses to prove the charge levelled against the accused. However, when a court is called upon to rely solely on the evidence of the detecting officer, the court must act with much care and circumspection. 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 a foolproof manner, thereby ruling out any possibility of tampering. Nevertheless, in the case at hand, a bare perusal of Ext.P5 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 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 got analyzed by the chemical examiner. 10. Likewise, in Ext.P5 seizure Mahazar, nothing is mentioned about the procedures of sampling and sealing which were adopted. During the examination before the court, PW2, 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. 11. 10. Likewise, in Ext.P5 seizure Mahazar, nothing is mentioned about the procedures of sampling and sealing which were adopted. During the examination before the court, PW2, 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. 11. Moreover, a perusal of the forwarding note, which was marked as Ext.P8, 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, the chemical examiner can 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. 12. 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. 13. Moreover, in a case of this nature, it is the bounden duty of the prosecution to show that the sample drawn from the spot remained in the safe custody until it reached the hands of the chemical examiner for analysis. Only when such a secure and uninterrupted chain of custody is proved can it be held that the sample analysed is the very same one drawn from the contraband allegedly seized from the accused. Keeping in mind the above while reverting to the case at hand, it can be seen that in Ext.P8 forwarding note, the name of the Excise Guard with whom the contraband was entrusted from the court for producing before the chemical examiner’s laboratory does not find a place. Keeping in mind the above while reverting to the case at hand, it can be seen that in Ext.P8 forwarding note, the name of the Excise Guard with whom the contraband was entrusted from the court for producing before the chemical examiner’s laboratory does not find a place. When the space designated in the forwarding note for recording the name of the Excise Guard remains blank, it is incumbent on the part of the prosecution to examine the Thondi clerk as well as the Excise Guard as a witnesses to prove that there was a tamper-proof dispatch of the sample from the court and an untampered transit of the same to the laboratory. The same view has been taken by this Court in Kumaran P. v. State of Kerala and Another, 2016 (5) KHC 632 . 14. Keeping in mind, while reverting to the case at hand, it can be seen that the Thondi clerk was examined as PW4 in this case. Nevertheless, during the examination before the court, he did not depose anything regarding the despatch of the sample to the chemical examiner’s laboratory. Moreover, he did not state the name of the Excise guard with whom the sample was entrusted, nor did he mention the date on which the same was entrusted. Apart from stating that it was he who received the sample when it was produced before the court after detection, nothing more was deposed by him. Therefore, his testimony does not assist the prosecution in establishing that the sample was sent for chemical analysis through any Excise officials, nor does it help to prove the identity of the person who carried the sample. Therefore, in the facts and circumstances of the present case, I have no hesitation in holding that the prosecution failed to prove the link evidence pertaining to the safe custody of the sample until it reached the hands of the chemical examiner. Therefore, it is liable to be held that the prosecution failed to prove the charge beyond a reasonable doubt. In the result, the appeal is allowed and the judgment of conviction and the order of sentence passed against the appellants/accused Nos. 1 and 2 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 appellants/accused Nos. In the result, the appeal is allowed and the judgment of conviction and the order of sentence passed against the appellants/accused Nos. 1 and 2 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 appellants/accused Nos. 1 and 2, the same shall be refunded to them in accordance with law.