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2026 DAILYLAW 689 (KER)

Binoy @ Philip, S/o. Jose @ Varkey v. State of Kerala, Represented By Public Prosecutor

2026-05-25

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 order of sentence passed against the revision petitioner for the offence punishable under Sections 8(2) r/w 8(1) of the Abkari Act and Sections 179 , 183 and 184 of the Motor Vehicles Act by the Assistant Sessions Court, Kasaragod, as per judgment dated 16.03.2013 in S.C. No.489/2010, which was confirmed in appeal by the Sessions Court, Kasaragod, by judgment dated 11.04.20.09.2008 in Criminal Appeal No.60/2013. The revision petitioner is the 1 st accused in the said case. The second accused was acquitted by a separate judgment passed in a separate trial. 2. The prosecution case is that, on 20.10.2004 at 5.20 p.m., accused No.1, while driving jeep No. KL-14A-8956 with accused No.2, disobeyed the signal of the Sub Inspector of Police, Badiadka, and attempted to flee. The police intercepted the vehicle after it fell into a roadside pit at Veettiyadka. On inspection, 3000 packets of Karnataka made arrack contained in six plastic sacks were allegedly recovered from the jeep. Thus, the accused are alleged to have committed the offence punishable under Section 8(2) r/w 8(1) of the Abkari Act and Sections 179 , 183 and 184 of the Motor Vehicles Act . 3. In order to establish the guilt of the accused, the prosecution examined PW1 to PW7 and marked Exts.P1 to P10. After the closure of the prosecution evidence, the first 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. Thereafter, the first accused was called upon to enter upon his defence and adduce evidence, if any, in support thereof. From the side of the accused, one document was marked as Ext.D1. Apart from the same, no evidence whatsoever was adduced from the side of the accused. 4. Upon appreciation of the evidence, 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 Sections 179 , 183 and 184 of the Motor Vehicles Act and convicted him thereunder. The accused was sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- for the offence under Section 8(2) r/w 8(1) of the . The accused was sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- for the offence under Section 8(2) r/w 8(1) of the . He was further sentenced to pay a fine of Rs.500/- under Section 179 of the and to undergo simple imprisonment for a period of one month and to pay a fine of Rs.10,000/- under Section 184 of the . In default of payment of fine, the accused was ordered to undergo simple imprisonment for a further period of three months. 5. Aggrieved by the said judgment, the accused preferred Criminal Appeal No.60/2013 before the Sessions Court, Kasaragod. The learned Sessions Judge, who heard the appeal, confirmed the conviction and the sentence imposed by the trial court. Aggrieved thereby, the accused has preferred the present revision petition. 6. Heard Sri. Grashious Kuriakose, the learned Senior Counsel for the revision petitioner and Sri. Sanal P Raj, the learned Public Prosecutor. The records were also perused. 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 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. According to the learned counsel, the absence of the specimen seal in the seizure mahazar itself creates serious doubt regarding the sanctity of the seizure, and the possibility of subsequent tampering cannot be ruled out. On these premises, it was urged 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. The learned Public Prosecutor further submitted that all mandatory procedures relating to the seizure and handling of the contraband were scrupulously complied with in this case, thereby completely ruling out any possibility of tampering or manipulation. 9. The learned Public Prosecutor further submitted that all mandatory procedures relating to the seizure and handling of the contraband were scrupulously complied with in this case, 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 in possession of a huge quantity of arrack in contravention of the provisions of the Abkari Act . In order to bring home the guilt of the accused, the prosecution examined seven witnesses as PW1 to PW7. Among them, the main evidence relied on by the prosecution is the testimony of PW6, the Sub Inspector of Police, Badiyadukka Police Station, who detected this case. During examination before the court, PW6 had narrated the entire sequence of events relating to the detection of the offence. 10. Moreover, it is significant to note that the prosecution examined an independent witness as PW5 to prove the alleged detection, and he fully supported the prosecution case and admitted his signature in Ext.P1 seizure mahazar. However, the records reveal that the accused attempted to establish that PW5 was a person with criminal antecedents and a stock witness of the police. In furtherance of the said attempt, during cross-examination, specific questions were put to PW5, and he admitted that he was involved in certain criminal cases and that, in one such case, he had been convicted. According to PW5, however, he is a politician and all the criminal cases registered against him were connected with his political activities. Further, the evidence on record shows that, although PW5 deposed before the court that the incident occurred on 20.10.2004, he had given a contradictory statement to the police during investigation stating that the detection was made on 21.10.2004, and the said contradiction has been duly proved in this case. Therefore, considering the totality of the circumstances, the evidence of PW5 regarding the occurrence is not convincing. 11. Moreover, in a case of this nature, 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. 11. Moreover, in a case of this nature, 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 evidence 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. 12. Keeping in mind the above while reverting to the case at hand, it can be seen that in Ext.P1 seizure mahazar neither the sample seal nor the specimen impression of the seal allegedly used by the detecting officer for sealing the sample was affixed therein. The absence of the sample seal or specimen impression of the seal in the seizure mahazar is certainly a circumstance creating doubt regarding the identity of the sample drawn and the identity of the sample produced before the court that was ultimately analyzed in the chemical examiner’s laboratory. 13. Further, Ext.P1 seizure mahazar does not contain any details regarding the procedure adopted for sampling and sealing. During his examination, PW6 also failed to state the nature of the seal used by him while sealing the sample as well as the residue of the contraband allegedly seized in the case. Therefore, I have no hesitation in holding that the prosecution failed to establish that the seizure and sampling were conducted in a foolproof manner. 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 petitioner/ accused for the offences punishable under Section 8(2) r/w 8(1) of the Abkari Act and Sections 179 , 183 and 184 of the Motor Vehicles Act are set aside, and the first accused is acquitted of the said offences. The bail bond, if any, executed by the first accused shall stand cancelled. The fine amount, if any, deposited by the revision petitioner/first accused shall be refunded to him in accordance with law.