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2026 DAILYLAW 614 (KER)

Sathya Kumar S/o Vasudevan v. State of Kerala

2026-06-01

Jobin Sebastian

body2026
ORDER : 1. This Criminal Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure , challenging the judgment of conviction and order of sentence passed against the revision petitioners for the offence punishable under Section 8(2) r/w Section 8(1) of the Abkari Act by the Additional Assistant Sessions Court, Kollam, as per judgment dated 09.04.2008 in S.C. No.592/2000, which was confirmed in appeal by the Additional Sessions Court-III, Kollam, by judgment dated 06.01.2011 in Criminal Appeal No.202/2008. The revision petitioners are accused Nos. 3, 4, 5, 6 and 7 in the said case. 2. The prosecution case, in brief, is that the accused, with the intention of manufacturing and selling arrack through 18 toddy shops in the Varkala–Chathanoor Excise Range, brought 1,200 litres of spirit. The 1st accused, being the licensee of the said toddy shops, and the 2nd accused, who was responsible for the conduct and management of the business of the said shops, along with accused Nos. 3 to 10, who were employees of the 1st accused, stored the said spirit in six barrels having a capacity of 210 litres each, each containing approximately 200 litres of spirit, in contravention of the provisions of the Abkari Act . Thus, the accused are alleged to have committed an offence punishable under Section 55(a) and (b) of the . 3. During trial, the prosecution examined PW1 to PW9 and marked Exts.P1 to P9. After the closure of the prosecution evidence, the accused were questioned under Section 313 of the Cr.P.C., during which they denied all the incriminating circumstances brought out in evidence against them. Since the court found that it was not a fit case for acquittal under Section 232 of the Cr.P.C., the accused were called upon to enter upon their defence and adduce evidence, if any, in support thereof. However, no defence evidence was adduced. 4. Upon appreciation of the evidence, the learned Additional Assistant Sessions Judge found accused Nos. 3 to 7 guilty of the offence punishable under Section 8(2) read with Section 8(1) of the Abkari Act and sentenced them to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,00,000/-, with a default sentence of simple imprisonment for six months. Accused Nos. 9 and 10 were found not guilty of the charges levelled against them and were accordingly acquitted. Accused Nos. 9 and 10 were found not guilty of the charges levelled against them and were accordingly acquitted. The case against the absconding 1st accused was split up and refiled for a separate trial. The proceedings against accused Nos. 2 and 8 stood abated consequent upon their death. 5. Aggrieved by the said judgment, accused Nos. 3 to 7 preferred Criminal Appeal No.202/2008 before the Sessions Court, Kollam. The learned Additional Sessions Judge-III, Kollam, who heard the appeal, confirmed the conviction and sentence imposed by the trial court. Aggrieved thereby, accused Nos. 3 to 7 have preferred the present revision petition. 6. Heard Sri. Noble Mathew, the learned counsel for the revision petitioners, and Sri. Jayakrishnan U., the learned Public Prosecutor. The records were also perused. 7. The learned counsel for the revision petitioners submitted that the revision petitioners are wholly innocent of the allegations levelled against them 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 petitioners have absolutely no connection with the contraband allegedly seized in the case and have been falsely implicated on mere surmises and conjectures. It was further contended that the search and seizure procedures were not conducted in a foolproof manner, thereby leaving ample scope for manipulation and tampering. Moreover, it was contended that the forwarding note has not been marked in this case, though it is a crucial document for establishing the chain of custody and proper transmission of the sample. The learned counsel urged that the non-production and non-marking of the forwarding note creates a serious lacuna in the prosecution case, particularly with respect to the integrity and admissibility of the sample forwarded for analysis. 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. The learned Public Prosecutor further submitted that all mandatory procedures relating to the seizure and sampling of the contraband were scrupulously complied with, thereby completely ruling out any possibility of tampering or manipulation. 9. As already noted, this is a case in which the prosecution alleges that the accused was found possessing 1,200 litres of spirit in contravention of the provisions of the Abkari Act . 9. As already noted, this is a case in which the prosecution alleges that the accused was found possessing 1,200 litres of spirit in contravention of the provisions of the Abkari Act . In order to establish the guilt of the accused, the prosecution mainly relies upon the testimony of the detecting officer and the contemporaneous documents prepared by him at the time of detection. However, it is significant to note that the prosecution had examined PWs 1 to 4 as independent witnesses to the occurrence. However, all the said witnesses turned hostile and deposed that they had not witnessed the incident. Nevertheless, it is well settled through a series of judicial pronouncements that the hostility of independent witnesses in Abkari cases is of little consequence, provided the evidence of the detecting officer is otherwise reliable and convincing. 10. It is a matter of common experience that in many Abkari cases, independent witnesses tend to turn hostile for reasons best known to them. Therefore, the mere hostility of independent witnesses cannot by itself be a ground to discard the prosecution case if the evidence of the official witnesses inspires confidence. In the present case, even the accused has no case that the detecting officer bore any animosity or ill will against him to falsely implicate him in a case of this nature. 11. Therefore, I am of the view that the hostility shown by the independent witnesses is inconsequential in the facts of the present case. However, when the court is called upon to rely substantially on the evidence of official witnesses, it is bound to scrutinize the evidence with greater care and caution. The prosecution has a bounden duty to establish, through cogent and convincing evidence, that the sample allegedly drawn from the contraband seized from the accused is the very same sample that ultimately reached the chemical examiner for analysis. There must be satisfactory link evidence to prove that the sample remained in safe and tamper-proof custody from the time of seizure till it reached the laboratory. Further, the prosecution must establish that the sample was forwarded from the court to the chemical examiner’s laboratory in a sealed and untampered condition and that there was no possibility of manipulation or substitution during transit. 12. Further, the prosecution must establish that the sample was forwarded from the court to the chemical examiner’s laboratory in a sealed and untampered condition and that there was no possibility of manipulation or substitution during transit. 12. In short, there must be an unbroken and reliable chain of custody connecting the seizure of the contraband with the sample ultimately analysed by the chemical examiner. Only if such a chain is satisfactorily established the court can safely conclude that the sample analysed was the very same sample allegedly seized from the accused. 13. Keeping the above principles in mind and adverting to the facts of the present case, it can be seen that the forwarding note along with which the sample was forwarded to the chemical examiner’s laboratory was not marked in evidence in the present case. The non-production of the forwarding note is fatal to the prosecution. Only upon production of the forwarding note the court can verify whether it contained the specimen impression of the seal so as to enable the chemical examiner to compare the seal affixed on the sample bottle with the specimen seal provided therein. In the absence of the forwarding note, it is not possible to infer that the specimen seal or sample seal impression used for sealing the sample bottle was provided in the forwarding note, so as to enable the Chemical Examiner to compare the same with the seal found on the sample. Moreover, it is only upon production of the forwarding note in evidence that the court can verify when the sample was despatched from the court to the Chemical Examiner’s laboratory and ascertain whether it was produced before the laboratory without any unreasonable delay. In short, it is liable to be held that the prosecution has failed to prove that the sample drawn from the contraband allegedly seized in this case is the very same sample that was subjected to analysis in the laboratory. 14. In the above circumstances, I am of the considered view that the prosecution has failed to prove its case beyond reasonable doubt. Consequently, the accused is entitled to the benefit of doubt. In the result, this Criminal Revision Petition is allowed. The judgment of conviction and the order of sentence passed against the revision petitioners/accused Nos. 14. In the above circumstances, I am of the considered view that the prosecution has failed to prove its case beyond reasonable doubt. Consequently, the accused is entitled to the benefit of doubt. In the result, this Criminal Revision Petition is allowed. The judgment of conviction and the order of sentence passed against the revision petitioners/accused Nos. 3 to 7, for the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act are set aside, and the accused are acquitted of the said offence. The fine amount, if any, deposited by the revision petitioners shall be refunded to them in accordance with law.