Kerala High Court
Manhathanath Sukumaran vs State Of Kerala on 13 February, 2025
Crl.R.P.No.594 OF 2018 1 2025:KER:12363
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
THURSDAY, THE 13TH DAY OF FEBRUARY 2025 / 24TH MAGHA, 1946
CRL.REV.PET NO. 594 OF 2018
AGAINST THE JUDGMENT DATED 28.02.2018 IN Crl.A NO.6 OF
2012 OF ADDITIONAL SESSIONS COURT, THALASSERY ARISING OUT OF
THE JUDGMENT DATED 16.12.2011 IN SC NO.431 OF 2006 OF
ASSISTANT SESSIONS COURT PAYYANNUR
REVISION PETITIONER/APPELLANT/ACCUSED:
MANHATHANATH SUKUMARAN
AGED 53 YEARS, S/O SASIDHARAN, THIRUMENI AMSOM,
MARUTHUMPADI, THALIPARAMBA TALUK, KANNUR DISTRICT
BY ADV SRI.C.P.PEETHAMBARAN
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031
PP-SMT.MAYA.M.N
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
HEARING ON 5.2.2025, THE COURT ON 13.02.2025 DELIVERED THE
FOLLOWING:
Crl.R.P.No.594 OF 2018 2 2025:KER:12363
M.B.SNEHALATHA, J.
-------------------------------------------
Crl.R.P.No.594 OF 2018
-------------------------------------------
Dated this the 13th February, 2025
ORDER
Revision petitioner is the accused in S.C.No.431/2006 on the file of the Assistant Sessions Court, Payyannur and the appellant in Crl.A No.6/2012 on the file of the Sessions Court, Thalassery. In this revision, he assails the judgment of conviction and order of sentence passed against him for the offence punishable under Section 8(2) of the Kerala Abkari Act.
2. Prosecution case is that on 4.6.2004 at around 7.30 am, at Maruthumpadi, accused was found in possession of 2 litres of illicit arrack in a can having a capacity of 5 litres. After investigation, final report was filed against the accused for the offence punishable under Section 55(a) of the Abkari Act.
3. After trial, the learned Assistant Sessions Judge, Payyannur found the accused guilty under Section 55(a) of the Abkari Act and he was convicted and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of ₹1 lakh.
Crl.R.P.No.594 OF 2018 3 2025:KER:12363 In default of payment of fine to undergo simple imprisonment for a period of three months. In appeal filed as Crl.A No.6/2012 by the accused, the Court of Session, Thalassery by relying on the decision of this Court in Aithappa Naik Vs. State of Kerala and Ors. (2017(2) KLT 1137) held that since the contraband article involved in this case was arrack, the offence attracted is Section 8(2) of the Abkari Act instead of Section 55(a) of the Abkari Act. The appellate court confirmed the sentence of imprisonment and the fine awarded by the trial court.
4. Both sides heard.
5. The learned counsel appearing for the revision petitioner contended that Ext.P3 seizure mahazar allegedly prepared by the detecting officer at the time of seizure of the contraband does not contain any seal allegedly affixed on the bottle containing the sample and therefore there is no acceptable evidence to connect the accused with the crime alleged. It was further contended that Ext.P6 forwarding note also do not contain the seal allegedly affixed and the column meant for the 'space for sample seal' is seen kept blank without affixing the sample seal and therefore no credibility can be attached to Ext.P8 chemical analysis report and to connect the accused with the contraband sent for analysis.
Crl.R.P.No.594 OF 2018 4 2025:KER:12363
6. Per contra, the learned Public Prosecutor supported the finding of conviction and sentence and submitted that the prosecution has succeeded in establishing the offence under Section 8(2) of the Abkari Act and there is no reason to interfere with the conviction and sentence.
7. Now let us see whether the conviction and sentence against the accused need any interference by this Court.
8. PW1 was the detecting officer and he was the excise inspector. According to him, Ext.P3 seizure mahazar was prepared by him at the time of seizure of arrack from the possession of the accused. In Ext.P3 seizure mahazar, it is seen stated that PW1 seized the contraband from the accused, took samples from it and sealed and labelled the sample bottle and the can containing the residue of the contraband. But in Ext.P3 seizure mahazar, PW1 has not affixed the seal which he allegedly affixed in the sample. The nature and description of the seal allegedly affixed in the sample and the can containing the residue also have not been mentioned in Ext.P3 seizure mahazar.
9. In Bhaskaran v. State of Kerala (2020 KHC 5296) this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the Crl.R.P.No.594 OF 2018 5 2025:KER:12363 seal shall be produced in the court so as to enable the court to satisfy the genuineness of the sample produced in the court.
10. In Ext.P6 forwarding note, there is a column 'space for sample seal'. In Ext.P6, the said column is seen kept blank and no seal has been affixed there. So, one cannot understand what was the specimen seal impressed on the sample bottle which was sent for chemical analysis. The said fact coupled with the absence of specimen seal in Ext.P3 seizure mahazar castes doubt in the prosecution case. Thus, there is merit in the argument advanced by the learned counsel for the revision petitioner that the prosecution failed to establish the link between the accused and the contraband sent for analysis. So, Ext.P8 report of the Chemical Analyst that the contraband sent for analysis was arrack is not sufficient to hold that it was seized from the accused.
11. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569) the Apex Court held that the mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related.
12. The seizure mahazar prepared by the detecting officer for the contraband seized from an accused should contain the specific Crl.R.P.No.594 OF 2018 6 2025:KER:12363 and essential details including the seal used for affixing in the sample taken for analysis. It must indicate the description of the seal used for affixing on the samples drawn from the seized contraband to ensure tamper proof handling. This documentation ensures the integrity and admissibility of the contraband as evidence in court and it ensures transparency and authenticity regarding the seizure. The seizure mahazar must carry the physical impression of the seal for future reference.
13. In the case at hand, prosecution failed to establish the case against the accused beyond any reasonable doubt. Therefore, he is entitled to get acquittal of the offence under Section 8(2) of the Abkari Act.
14. In the result, the revision petition stands allowed; accused is found not guilty of the offence under Section 8(2) of the Abkari Act and he is acquitted under Section 235(1) of Cr.P.C. His bail bond stands discharged and he is set at liberty.
Fine, if any, remitted by the accused shall be returned to him.
Sd/-
M.B.SNEHALATHA JUDGE ab