Research › Search › Judgment

Kerala High Court · body

2026 DAILYLAW 574 (KER)

Chacko, S/o. Lukha v. State of Kerala Represented By Excise Inspector

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 Court-II, Kozhikode as per the judgment dated 10.11.2016 in S.C No.1330/2014, which was confirmed in appeal by the Additional Sessions Court-I, Kozhikode, as per judgment dated 28.04.2017 in Crl. Appeal No. 498/2016. The revision petitioner is the sole accused in the said case. 2. The prosecution case is that on 25.12.2013, the accused was found in possession of 15 litres of illicit arrack for the purpose of sale in contravention of the provisions contained under the Abkari Act and thereby committed the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act . 3. During trial, from the side of the prosecution, PW1 to PW9 were examined, marked Exts.P1 to P9 and 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, from the side of the accused, 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 8(2) r/w 8(1) of the Abkari Act and convicted him. The 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, the accused was ordered to undergo simple imprisonment for a period of three months. 5. The accused challenged the conviction by filing Criminal Appeal No. 498/2016. The learned Additional Sessions Judge, Kozhikode, who heard the appeal, confirmed the finding of conviction but modified the sentence by reducing the term of imprisonment from one year to six months. No interference was made with respect to the fine amount imposed by the trial court. 6. Heard Sri. The accused challenged the conviction by filing Criminal Appeal No. 498/2016. The learned Additional Sessions Judge, Kozhikode, who heard the appeal, confirmed the finding of conviction but modified the sentence by reducing the term of imprisonment from one year to six months. No interference was made with respect to the fine amount imposed by the trial court. 6. Heard Sri. Shalvin Chamathakal Robin, the learned counsel appearing for the revision petitioner, and Smt. Anima M, the learned Public Prosecutor, and also perused the records. 7. The learned counsel for the revision petitioner submitted that the accused is innocent of the allegations levelled against him and that both the trial court and the appellate court committed grave illegality and irregularity in the appreciation of the facts and evidence adduced in the case. According to the learned counsel, the accused has no connection whatsoever either with the contraband allegedly seized or with the house from which it was seized. It was further contended that the prosecution has miserably failed to establish that the contraband seized in the case was in the exclusive and conscious possession of the accused, and that the revision petitioner was arrayed as an accused merely on the basis of surmises and conjectures. On the aforesaid grounds, it was urged that the revision petitioner is entitled to be acquitted. 8. Per contra, the learned Public Prosecutor would submit that the prosecution has fully succeeded in proving the guilt of the accused. According to the learned Public Prosecutor, the contraband seized in this case was recovered from the house, which was in the exclusive and conscious possession of the accused, and therefore, he cannot be heard to say that he has no knowledge or connection with the contraband seized in this case. The learned Public Prosecutor also pointed out that all the procedures relating to the sampling and sealing of the contraband were done in a foolproof manner without affording an opportunity for the defence to raise allegations of tampering and malpractice by the excise officials. 9. Before delving into a detailed discussion regarding the scope of interference in the impugned judgment, it is worthwhile to note that the scope of interference in a revision petition is too less. 9. Before delving into a detailed discussion regarding the scope of interference in the impugned judgment, it is worthwhile to note that the scope of interference in a revision petition is too less. By a series of judicial pronouncements, it is well settled that a court exercising revisional jurisdiction will interfere with the findings of the courts below only when such findings suffer from illegality, impropriety, or perversity. Unless it is shown that the judgment of the Trial Court or the Appellate Court is perverse, unreasonable, or suffers from non-consideration of relevant material or misreading of evidence, interference in revision is not warranted. The revisional court cannot reappreciate the evidence as an Appellate Court and substitute its own view merely because another view is possible. 10. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri [ AIR 1999 SC 981 ], the Hon'ble Supreme Court held thus: “In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.” 11. Keeping in mind the above principles, and reverting to the facts of the present case, it can be seen that, as rightly pointed out by the learned counsel for the revision petitioner, the prosecution mainly relies upon the evidence of the detecting officer, the Excise Inspector of Balussery Range, to bring home the guilt of the accused. Keeping in mind the above principles, and reverting to the facts of the present case, it can be seen that, as rightly pointed out by the learned counsel for the revision petitioner, the prosecution mainly relies upon the evidence of the detecting officer, the Excise Inspector of Balussery Range, to bring home the guilt of the accused. It is evident that the independent witnesses cited by the prosecution to prove the alleged detection and seizure of the contraband, when examined before the court as PW5 to PW7, turned hostile to the prosecution and deposed that they had not witnessed the seizure of the contraband from the house of the accused. 12. While considering the question whether the hostility shown by the independent witnesses had any serious impact in this case, it is to be borne in mind that, in almost all Abkari cases, the independent witnesses are turning hostile to the prosecution for reasons only best known to them. However, through a catena of judicial pronouncements, it is well settled that the hostility shown by the independent witnesses to a seizure mahazar in Abkari cases is of little consequence, particularly when the evidence of a detecting officer regarding the detention of the contraband is convincing and reliable. 13. Although the settled legal position is as stated above, it cannot be ignored that, when there are materials to suggest that the Excise Inspector had any prior animosity or grudge against the accused which could have motivated him to falsely implicate the accused in a case of this nature, it would always be prudent for the court to act with great care and circumspection and to look for independent corroboration of the evidence of the detecting officer before placing reliance upon it. 14. However, in the case at hand, even the accused does not have a case that the Excise Inspector bore any animosity towards him to falsely implicate him in a case of this nature. In the absence of any material to suggest that the detecting officer had any axe to grind against the accused, I am of the considered view that there is nothing unsafe in relying upon the evidence of the detecting officer. 15. However, when a court is called upon to rely solely upon the evidence of the detecting officer, it must act with utmost care and circumspection. 15. However, when a court is called upon to rely solely upon the evidence of the detecting officer, 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, and sampling of the contraband were carried out in a foolproof manner, thereby eliminating any possibility of tampering. In the case at hand, a bare perusal of Ext.P4 mahazar reveals that the specimen impression of the sample seal used for sealing the sample bottle was properly affixed therein. Likewise, the specimen seal also finds a place in the property list. Significantly, the same sample seal was also affixed in the forwarding note. Moreover, the records clearly indicate that, after sealing and sampling, both the sample and the residue of the contraband were produced before the court without any undue delay. Similarly, after the sample was entrusted to the Excise Guard, the same reached the hands of the Chemical Examiner without delay. By producing the relevant documentary evidence, the prosecution has successfully established the safe custody of the sample till it reached the Chemical Examiner. 16. Therefore, I have no hesitation in holding that the prosecution has succeeded in establishing that the sample drawn from the contraband at the place of detection was the very same sample that ultimately reached the Chemical Examiner’s laboratory for analysis. In short, the above discussion clearly reveals that all procedures relating to sealing and sampling were carried out in a foolproof manner, leaving no room for any doubt or suspicion regarding the integrity of the sample. 17. However, in the case at hand, it is pertinent to note that this is not a case in which the accused was arrested from the spot. The evidence on record establishes that, at the time when the search was conducted, the accused was not present in the house. More importantly, except for the accused’s wife, no other family members were present in the house at the relevant time. In a case of this nature, it is the bounden duty of the prosecution to establish that the accused had actual control over the contraband allegedly seized and that he was in conscious and exclusive possession of the same. 18. Apparently, when the Excise party reached the house, the accused was absent. In a case of this nature, it is the bounden duty of the prosecution to establish that the accused had actual control over the contraband allegedly seized and that he was in conscious and exclusive possession of the same. 18. Apparently, when the Excise party reached the house, the accused was absent. No investigation appears to have been conducted by the Excise officials to ascertain whether any other major male members were residing in the house along with the accused. It is also significant to note that the prosecution has no case that, when the Excise party arrived at the house, they found the accused handling the contraband. Had the accused been found in possession of or dealing with the contraband at the relevant time, a heavy burden would have been cast upon him to explain the circumstances under which he was found with the contraband. In such circumstances, it would have been possible to draw a presumption that the accused was in conscious and exclusive possession of the contraband. However, in the present case, there is absolutely nothing on record to show that it was the accused who was in conscious possession of the contraband allegedly seized. 19. Moreover, in Ext.P4 seizure mahazar, it is stated that the contraband was kept inside the bedroom of the accused’s house. However, in the occurrence report, which is a material document in an Abkari case, it is stated that the contraband was recovered from the veranda of the house. This inconsistency regarding the place from which the contraband was allegedly recovered creates a serious dent in the prosecution case. Therefore, I have no hesitation in holding that the prosecution has miserably failed to establish that the contraband allegedly seized in the case was in the conscious and exclusive possession of the accused. In the result, the Criminal Revision Petition is allowed. The judgment of conviction and the order of 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. If the revision petitioner/accused has deposited any fine amount pursuant to the impugned judgment, the same shall be refunded to him in accordance with law.