## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS**
**TUESDAY, THE 24[TH] DAY OF AUGUST 2021 / 2ND BHADRA, 1943**
**CRL.A NO. 134 OF 2013**
**AGAINST THE ORDER/JUDGMENT IN SC 679/2009 OF III ADDITIONAL**
**DISTRICT COURT, THRISSUR, THRISSUR**
**APPELLANT/ACCUSED:**
**KUTTAPPAN S/O. THANKAPPAN, PAZHAMKANDATH HOUSE, CHITTANDA VILLAGE, THALAPPILLY TALUK. BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.VIPIN NARAYAN**
## **RESPONDENT/COMPLAINANT:**
**STATE OF KERALA RERPESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
**SRI. M.C. ASHI (P.P)**
**THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**CRL.A NO. 134 OF 2013**
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## **JUDGMENT**
Appellant is aggrieved by the conviction and sentence imposed on him in SC No.679/2009 on the files of the Sessions Court, Thrissur as per judgment dated 09.01.2013. By the judgment under challenge, appellant was found guilty and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- under Section 8(2) of the Abkari Act.
2. The prosecution case was that on 08.11.2007 at about 6 p.m., the accused was found in possession of 5 ltrs. of arrack on a mud road in front of 'Mali goat farm' in a place called Chittanda. After seizing the arrack, the sample was taken and the accused was arrested. Thereafter, a crime was registered as 67/2007. On completion
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of investigation, the charge was laid before the Judicial First Class Magistrate, Wadakkanchery. After complying with the procedure prescribed and on finding that an offence triable exclusively by the court of sessions had been committed, the case was committed for trial to the Sessions Court, Thrissur.
3. In order to prove the prosecution case, four witnesses were examined as PWs 1 to 4 and marked Exts.P1 to P10, apart from material object MO1. After analysing the facts and evidence in the case, the learned Sessions Judge, found the accused guilty and sentenced him as stated earlier.
4. I heard Adv.M.Ravi Krishnan, the learned counsel appearing for the appellant as well as Adv.M.C.Ashi, the learned Public Prosecutor.
5. Adv.M.Ravi Krishnan submitted that the very
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basis on which the prosecution had built up its case is faulty and on that sole basis the accused was entitled to an acquittal. The learned counsel invited my attention to the evidence of PW1-the detecting officer. It was pointed out that when PW1 was confronted, during cross examination, he was unable to clearly explain the nature of sampling and the manner in which the sample was taken, apart from his inability to explain the absence of reference to the sample seal in the mahazar. According to the learned counsel, the provisions of the Abkari Act and its punishment being draconian in nature, a strict adherence to the procedure ought to be carried out. Adherence to the procedure must exist at from the every stage, commencing detection of the offence and continue through sampling and throughout the
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investigation until the charge is laid.
6. On the other hand, the learned Public Prosecutor Adv.M.C.Ashi submitted that sampling of the contraband was done in accordance with law and the label and the seal on MO1 can are two different aspects. According to the learned Prosecutor merely because the label was absent at the time of trial, the said aspect cannot be reckoned as a reason to doubt the prosecution case.
7. I have considered the rival contentions. It is true that the Abkari Act and its provisions being penal in nature, must receive a strict interpretation, especially in the light of the severe punishment provided with a minimum fine amount of Rs.1,00,000/irrespective of the quantity of liquor possessed by an accused. Taking a sample from an alleged contraband is of significance in a penal statute of the likes of
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Abkari Act. The link, from the time of taking the sample till it reaches the chemical analytical laboratory must be clearly established and remain unbroken so as to ensure that it was the very same sample taken from the seized contraband that reached the analytical laboratory.
8. PW1, who was the detecting officer in the instant case, during examination in chief, stated that, 200 mltrs. of sample was taken from the contraband seized and after affixing the seal and the label and after referring to the same in the seizure mahazar, the accused was arrested. However, during cross examination, when PW1 was confronted with the procedure for sampling adopted in the instant case, he could not explain the nature or type of seal affixed on the sample. It is not seen mentioned in the mahazar also. Failure to
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mention the nature and type of seal affixed on the sample, in the contemporaneous document in the present case, when viewed in the light of other circumstances creates a doubt on the prosecution case. (See **Bhaskaran K. v. State of Kerala and another** [2020 KHC 5296] and **Achuthan v. State of Kerala** [ILR 2016 (2) Ker. 145]
9. PW1 has stated in his evidence that MO1 was returned for safe custody to the Excise Department. However, he does not know who received it from court, but assumes it to have been under the custody of Excise Inspector. He further affirms that he had not received custody of MO1 from court and also that there have been several Excise Inspectors who had taken charge in that station one after the other. PW1 also deposed that the forwarding note Ext.P10 was prepared by one Anwar Sadath, who
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was not examined nor cited as a witness by the prosecution.
10. It was the prosecution case that when the contraband was produced before the Magistrate on 08.11.2007 at 9.15 p.m., it was returned after acknowledging. This fact
is evident from the endorsement in Ext.P6. It is also seen from the endorsement on the back of Ext.P6 that the contraband was returned (except the sample) to the Excise Inspector for safe custody. However, PW1 in his cross examination admitted that he had not received custody of the contraband and also that after the day of seizure he saw the contraband only on the day of his evidence. PW1 also expressed his ignorance on various matters, during his cross examination.
11. The depositions of PW2 and PW3 also do not throw much light on the prosecution story. PW4 had laid the charge and his
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deposition also does not throw light on the custody of the contraband or the affixture of seal on MO1.
12. On an appreciation of the aforesaid evidence of PW1 to PW4, I am of the view that there is a dearth of evidence to prove that the sample was taken as alleged by the prosecution at the time of detecting the offence. There is also a dearth of inspiring evidence to prove that, any seal was affixed on the sample at the time the sample was taken. In the absence of proof beyond reasonable doubt that the sample of contraband was taken as alleged, the prosecution cannot be said to have proved the offence alleged against the accused.
13. Since the very basis on which the prosecution had built up its case stands not proved, I am of the view that the accused is entitled for the benefit of doubt.
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## **CRL.A NO. 134 OF 2013**
14. Accordingly, the conviction and sentence imposed upon the accused by judgment dated 09.01.2013 in SC No.679/2009 on the files of the Sessions Court, Thrissur is set aside and the appellant shall stand acquitted. The bail bonds, if any executed, shall stand cancelled. The fine amount or any part of it, if deposited, shall be refunded to the appellant forthwith.
The appeal is allowed as above.
**Sd/-**
**BECHU KURIAN THOMAS, JUDGE**
AMV/24/08/2021
**CRL.A NO. 134 OF 2013**
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## **APPENDIX**
## **PETITIONERS EXHIBITS :**
|**EXHIBIT P1**|**COPY**<br>**OF**<br>**THE**<br>**TRANSFER**<br>**ORDER**<br>**NO.KLWFBH/872/2021-EI(EST) DATED 02.06.2021**<br>**ISSUED BY 2ND RESPONDENT.**|
|---|---|
|**EXHIBIT P2**|**COPY OF THE ORDER NO.938/2021 ISSUED BY THE**<br>**3RD RESPONDENT DATED 03.06.2021.**|
|**EXHIBIT P3**|**COPY OF THE REPRESENTATION DATED 05.06.2021**<br>**SENT TO THE 2ND RESPONDENT THROUGH PROPER**<br>**CHANNEL.**|
|**EXHIBIT P4**|**COPY OF THE REPRESENTATION DATED 05.06.2021**<br>**TO THE 3RD RESPONDENT.**|
## **RESPONDENTS EXHIBIT : NIL**
**TRUE COPY P.A.TO JUDGE**
