Arunkumar, S/o. Venukumar v. State of Kerala Represented By The Public Prosecutor
2026-05-25
Jobin Sebastian
body2026
DailyLaw.ai
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 offences punishable under Sections 55(g) and 8(2) r/w 8(1) of the Abkari Act by the Assistant Sessions Court, Nedumangad as per the judgment dated 02.06.2014 in S.C. No.592/2009, which was confirmed in appeal by the Additional Sessions Court-VII, Thiruvananthapuram, as per judgment dated 29.01.2016 in Crl. Appeal No.202/2014. The revision petitioner is the sole accused in the said case. 2. The prosecution case is that, on 02.10.2007 at 6.00 p.m., the accused was found in possession and transporting of 1.5 litres of arrack, in contravention of the provisions of the Abkari Act . Thus, the accused is alleged to have committed the offences punishable under Sections 55(g) and 8(2) r/w 8(1) of the Abkari Act . 3. During trial, from the side of the prosecution, PW1 to PW4 were examined and marked Exts.P1 to P6. 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 offences punishable under Section 8(2) r/w 8(1) of the Abkari Act , and he was convicted. The accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- for the offence punishable under Section 8(2) r/w 8(1) of the . In default of payment of fine, the accused was ordered to undergo rigorous imprisonment for a further period of one month. 5. Aggrieved by the said judgment, the accused preferred Criminal Appeal No.202/2014 before the Sessions Court, Thiruvananthapuram. The learned Additional Sessions Judge, who heard the appeal, allowed the appeal in part and modified the sentence imposed on the accused, while confirming the finding of guilt entered by the trial court.
5. Aggrieved by the said judgment, the accused preferred Criminal Appeal No.202/2014 before the Sessions Court, Thiruvananthapuram. The learned Additional Sessions Judge, who heard the appeal, allowed the appeal in part and modified the sentence imposed on the accused, while confirming the finding of guilt entered by the trial court. The accused was sentenced to undergo rigorous imprisonment for six months for the offence punishable under Section 8(2) of the Abkari Act and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused was directed to undergo rigorous imprisonment for one month. Aggrieved thereby, the accused has filed the present revision petition. 6. Heard Sri.Ranju Mohan, the learned counsel for the revision petitioner, and Sri. U. Jayakrishnan, 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 based on mere surmises and conjectures. It was further contended that the procedures relating to seizure and sampling were not carried out in a foolproof and tamper-proof manner, thereby leaving room for possible tampering. According to the learned counsel, it would be unsafe to sustain the conviction solely based on the testimony of the detecting officer in the facts and circumstances of the case. It was further argued that the prosecution failed to establish the necessary link evidence to prove that the sample allegedly drawn from the place of detection was the very same sample that ultimately reached the chemical examiner’s laboratory for analysis. 8. In response, the learned Public Prosecutor would contend that, to eliminate any possibility of future allegations of manipulation or tampering, all the procedural formalities were scrupulously followed in this case. According to the learned Public Prosecutor, the sample was drawn at the spot of detection itself and was produced before the court on the very same day.
8. In response, the learned Public Prosecutor would contend that, to eliminate any possibility of future allegations of manipulation or tampering, all the procedural formalities were scrupulously followed in this case. According to the learned Public Prosecutor, the sample was drawn at the spot of detection itself and was produced before the court on the very same day. Likewise, the sample seal finds a place in crucial documents like seizure mahazar, property list, forwarding note, etc., and therefore, there is no reason to doubt that the sample drawn at the time of detection is the very same sample that reached the hands of the chemical examiner for analysis. 9. As already stated, this is a case in which the prosecution alleges that the accused was found in possession of arrack in contravention of the provisions of the Abkari Act . In order to bring home the guilt of the accused, the prosecution had examined four witnesses as PW1 to PW4. Among them, the main evidence relied upon by the prosecution to establish the guilt of the accused is the testimony of PW2, the detecting officer, who was then working as the Excise Inspector, Nedumangad Excise Range, Thiruvananthapuram. During examination before the court, PW2 had vividly narrated the entire sequence of events relating to the detection of the offence. However, it is significant to note that the prosecution had failed to examine any independent witness before the court. 10. However, there is no straightjacket formula that in order to act upon the evidence of the detecting officer, his evidence must be corroborated by the evidence of other independent witnesses. On the other hand, if the evidence of a detecting officer is convincing and reliable, the court can rely upon such evidence although the same is not corroborated by other independent evidence. However, when there are glaring circumstances or materials to suggest that the detecting officer harboured any sort of animosity or ill will against the accused to falsely implicate him, the evidence of such officer cannot be accepted as gospel truth. In such circumstances, the court is duty-bound to scrutinize the evidence with greater caution. However, in the present case, even the accused does not have a case that the detecting officer had any axe to grind against the accused that would motivate the detecting officer to implicate the accused in a case of this nature.
In such circumstances, the court is duty-bound to scrutinize the evidence with greater caution. However, in the present case, even the accused does not have a case that the detecting officer had any axe to grind against the accused that would motivate the detecting officer to implicate the accused in a case of this nature. Therefore, I find no reason to disbelieve the testimony of PW2, the detecting officer. 11. However, when a court is called upon to rely on the evidence of official witnesses alone, it is imperative on the part of the prosecution to show that the entire procedures relating to the search, seizure and sampling of the contraband were done in a foolproof manner without leaving room for manipulations and tampering. It is the bounden duty of the prosecution to establish that the sample drawn from the contraband seized remained in safe custody until it reached the hands of the chemical examiner for analysis. Only when such a secure and uninterrupted chain of custody is proved, it can be held that the sample analyzed was the very same sample drawn from the contraband allegedly seized from the accused. 12. Keeping in mind the above while reverting to the case at hand, it can be seen that in Ext.P5 forwarding note, the name of the Excise Guard with whom the contraband was entrusted from the court for producing before the chemical examiner’s laboratory does not find a place. When the space designated in the forwarding note for recording the name of the Excise Guard remains blank, it is incumbent on the part of the prosecution to examine the Thondi clerk as well as the Excise Guard as witnesses to prove that there was a tamper-proof dispatch of the sample from the court and an untampered transit of the same to the chemical examiner’s laboratory. The same view has been taken by this Court in Kumaran P. v. State of Kerala and Another ( 2016 (5) KHC 632 ). However, in the case at hand, neither the Thondi clerk nor the Excise Guard with whom the sample was entrusted from the court was examined. The absence of such examination enures to the benefit of the accused.
However, in the case at hand, neither the Thondi clerk nor the Excise Guard with whom the sample was entrusted from the court was examined. The absence of such examination enures to the benefit of the accused. Therefore, in the facts and circumstances of the present case, I have no hesitation in holding that the prosecution failed to prove the link evidence pertaining to the safe custody of the sample until it reached the hands of the chemical examiner. The said lapse is fatal to the prosecution, and hence, it is liable to be held that the prosecution failed to prove the charge beyond a reasonable doubt. 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 of the said offence. The bail bond, if any, executed by the accused, shall stand cancelled. The fine amount, if any, deposited by the revision petitioner/accused shall be refunded to him in accordance with law.