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2026 DAILYLAW 570 (KER)

Mathew @ Jose v. State of Kerala Represented By The Public Prosecutor

2026-05-18

Jobin Sebastian

body2026
ORDER : JOBIN SEBASTIAN, J. This Criminal Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure, challenging the judgment of conviction and the order of sentence passed against the revision petitioner for the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act by the Assistant Sessions Judge- II, Kozhikode as per the judgment dated 06.02.2017 in S.C. No.946/2014, which was confirmed in appeal by the Additional Sessions Judge-I, Kozikode, as per judgment dated 15.07.2017 in Crl. Appeal No.66/2017. The revision petitioner is the sole accused in the said case. 2. The prosecution case is that on 10.02.2015 at 6.00 p.m., at Pattasserimukku on Seethapara-Muthukad Public Road, the accused was found in possession of 750 ml of arrack and engaged in the sale of the same in contravention of the provisions of the Abkari Act . Thus, the accused is alleged to have committed an offence punishable under Section 8(2) r/w 8(1) of the . 3. During trial, from the side of the prosecution, PW1 to PW7 were examined and marked Exts.P1 to P8. MO1 and MO2 were exhibited and identified. After the closure of the prosecution evidence, the accused was questioned under Section 313 of the 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, no evidence whatsoever was produced from the side of the accused. 4. Finally, the learned Assistant Sessions Judge found the accused guilty of the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act , and he was convicted. The accused was sentenced to undergo simple imprisonment for a period of 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, the accused was ordered to undergo simple imprisonment for a further period of one month. 5. Aggrieved by the said judgment, the accused preferred Criminal Appeal No.66/2017 before the Sessions Court. The learned Additional Sessions Judge, Kozhikode, who heard the appeal, confirmed the conviction and sentence imposed by the trial court. Challenging the said appellate judgment, the accused has filed the present revision petition. 6. 5. Aggrieved by the said judgment, the accused preferred Criminal Appeal No.66/2017 before the Sessions Court. The learned Additional Sessions Judge, Kozhikode, who heard the appeal, confirmed the conviction and sentence imposed by the trial court. Challenging the said appellate judgment, the accused has filed the present revision petition. 6. Heard Smt. Uma Maheshwari, the learned counsel for the revision petitioner, and Smt. M. Anima, the learned Public Prosecutor, also perused the records. 7. The learned counsel for the revision petitioner submitted that the revision petitioner is wholly innocent of the allegations levelled against him and that both the trial court and the appellate court failed to appreciate the evidence in its proper perspective. According to the learned counsel, the revision petitioner has absolutely no connection with the contraband allegedly seized in the case and has been falsely implicated on the basis of mere surmises and conjectures. The learned counsel further contended that the search and seizure procedures were not conducted by the detecting officer in a foolproof manner, thereby leaving ample scope for manipulation and tampering. It was also submitted that there is no satisfactory link evidence to establish that the contraband allegedly seized from the accused is the very same material that ultimately reached the chemical examiner’s laboratory for analysis. According to the learned counsel, the absence of the specimen seal in the seizure mahazar itself creates a serious doubt regarding the sanctity of the seizure and the possibility of subsequent tampering cannot be ruled out. Hence, there is no assurance that the contraband analysed in the laboratory was the same as that allegedly seized in the case. On these premises, the learned counsel argued that the revision petitioner is entitled to an order of acquittal. 8. Per contra, the learned Public Prosecutor submitted that there is ample evidence on record to establish that the contraband involved in the case was recovered from the conscious and exclusive possession of the accused and, therefore, the impugned judgment warrants no interference. According to the learned Public Prosecutor, the entire contraband seized in the case was forwarded to the chemical examiner’s laboratory for analysis and, therefore, the revision petitioner cannot contend that no representative sample had been drawn from the seized contraband, since the entire quantity itself was subjected to chemical analysis. According to the learned Public Prosecutor, the entire contraband seized in the case was forwarded to the chemical examiner’s laboratory for analysis and, therefore, the revision petitioner cannot contend that no representative sample had been drawn from the seized contraband, since the entire quantity itself was subjected to chemical analysis. The learned Public Prosecutor further submitted that all mandatory procedures relating to the seizure and handling of the contraband were scrupulously complied with, thereby completely ruling out any possibility of tampering or manipulation. It was therefore contended that there are no grounds warranting interference with the judgment passed by the learned trial court, as confirmed by the appellate court. 9. As already stated, this is a case in which the prosecution alleges that the accused was found in possession of 750 ml of arrack and was engaged in its sale. In order to bring home the guilt of the accused, the prosecution examined witnesses as PW1 to PW7. Among them, the principal evidence relied upon by the prosecution to establish the guilt of the accused is the testimony of PW5, the detecting officer, who was then working as the Sub-Inspector of Police attached to Peruvannamuzhi Police Station. 10. A bare perusal of the testimony of PW5 reveals that, during his examination before the court, he vividly narrated the entire sequence of events relating to the detection of the offence. Though he was subjected to a searching and incisive cross-examination, he withstood the same successfully, and his evidence is free from material contradictions or omissions. 11. However, it is significant to note that the prosecution had also examined two independent witnesses as PW1 and PW2 in support of its case. Both of them, however, turned hostile to the prosecution and deposed that they had not witnessed the detection of the contraband from the possession of the accused. 12. While considering the effect of the hostility shown by the independent witnesses, it must be borne in mind that, in recent times, it has become a common experience that in most Abkari cases, independent witnesses tend to turn hostile to the prosecution for reasons best known to them. It is well settled through a catena of judicial pronouncements that the hostility of independent witnesses in Abkari cases is of little consequence, provided the evidence of the detecting officer regarding the detection and seizure of the contraband is otherwise convincing and reliable. 13. It is well settled through a catena of judicial pronouncements that the hostility of independent witnesses in Abkari cases is of little consequence, provided the evidence of the detecting officer regarding the detection and seizure of the contraband is otherwise convincing and reliable. 13. At the same time, there cannot be any straightjacket formula that in every Abkari case the court is bound to act solely on the testimony of the detecting officer or other official witnesses notwithstanding the absence of independent corroboration. If there are glaring circumstances or materials suggesting that the detecting officer harboured animosity or ill will against the accused so as to falsely implicate him, the evidence of such officer cannot be accepted as gospel truth. In such circumstances, the court is duty-bound to scrutinise the evidence with greater caution. 14. However, in the present case, even the accused has no specific case that the detecting officer had any axe to grind against him or any motive to falsely implicate him in a case of this nature. Therefore, I find no reason to disbelieve the testimony of PW5, the detecting officer. 15. Nevertheless, when a court is called upon to place sole reliance on the testimony of official witnesses, it must act with utmost care and circumspection. It is incumbent upon the prosecution to satisfy the court that all procedures relating to the search, seizure, sealing, and handling of the contraband were carried out in a foolproof manner so as to rule out every possibility of tampering or manipulation. Further, there must be cogent and convincing link evidence, both oral and documentary, to establish that the contraband allegedly seized from the accused is the very same material that ultimately reached the court and was thereafter forwarded to the chemical examiner’s laboratory for analysis. 16. Keeping the above principles in mind and adverting to the facts of the present case, it is seen that no sample was drawn from the contraband allegedly seized from the accused. Instead, the entire contraband was forwarded to the chemical examiner’s laboratory for analysis. However, a careful scrutiny of Ext.P2 seizure mahazar reveals that there is absolutely no mention therein that the contraband was sealed at the place of detection itself. The seizure mahazar is also conspicuously silent regarding the manner in which the sealing procedure was carried out. 17. Instead, the entire contraband was forwarded to the chemical examiner’s laboratory for analysis. However, a careful scrutiny of Ext.P2 seizure mahazar reveals that there is absolutely no mention therein that the contraband was sealed at the place of detection itself. The seizure mahazar is also conspicuously silent regarding the manner in which the sealing procedure was carried out. 17. More importantly, even assuming that the contraband had in fact been sealed, neither the specimen seal nor the sample impression of the seal allegedly used for sealing the contraband finds a place in any of the contemporaneous records prepared at the time of seizure. The absence of the specimen seal in the seizure mahazar undoubtedly creates a serious doubt regarding the identity and integrity of the contraband allegedly seized from the accused and later produced before the court and forwarded to the chemical examiner for analysis. 18. It is also significant that the forwarding note does not contain the specimen impression of the seal used for sealing the contraband. It is only when the specimen seal is provided in the forwarding note that the chemical examiner would be in a position to verify whether the seal affixed on the contraband tallied with the specimen seal provided. In the absence of such a safeguard, there is no guarantee that the material analysed by the chemical examiner was the very same contraband allegedly seized from the possession of the accused. 19. In such circumstances, I am of the considered view that the prosecution has miserably failed to establish the vital link evidence connecting the contraband allegedly seized from the accused with the material ultimately analysed in the chemical examiner’s laboratory. On that ground alone, the accused is entitled to the benefit of doubt and consequent acquittal. In the result, the Criminal Revision Petition is allowed. The judgment of conviction and sentence passed against the revision petitioner/accused for the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act are set aside, and the accused is acquitted of the said offence. The fine amount, if any, deposited by the revision petitioner/accused shall be refunded to him in accordance with law.