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2025 Supreme(Ker) 2385
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Johnson John, J.
Vanaja, W/O Raju – Petitioner
Versus
State Of Kerala, Represented By Public Prosecutor – Respondent
CRL.A NO. 714 OF 2008
Decided On : 22-08-2025
Advocate Appeared:
For the Petitioner: Sri.R.Prem Sankar
Lack of sufficient evidence to establish ownership and procedural compliance in contraband cases can lead to acquittal.
Headnote:(A) IPC - Sections 353, 332, 506(ii) r/w 34 - Kerala Abkari Act - Section 8(1) r/w 8(2) - Charges of assault on police and sale of illicit liquor - The conviction based on insufficient evidence of ownership and identification was challenged and ultimately set aside. There was uncertainty in house ownership, tampering of sample checks was insufficiently ensured, and corroborative evidence was lacking. (Paras 5, 26, 27)
(B) Evidence - Identification and common intention - Court found no common intention proven among accused present nor sufficient identification of the appellant, resulting in a lack of substantive evidence against her. (Paras 8, 24, 27)
Facts of the case:
The appellant was accused of selling illicit arrack and assaulting police during an attempted arrest. The officers allege resistance and assaults, but evidence of house ownership and proper formalities for sample checks was questioned.
Findings of Court:
Insufficient procedural compliance rendered the prosecution's case weak. The evidence did not sufficiently establish the appellant’s common intention or harmful actions toward police officials.
Issues: The main issues were the sufficiency of evidence, identification of the accused, common intention among participants, and the validity of the sample collection process.
Ratio Decidendi: The court ruled that evidence was insufficient to prove the ownership of the house where the contraband was found or to establish the mandatory procedures were followed, affecting the credibility of the samples and the overall case against the appellant.
Result: The conviction and sentence are set aside; the appellant is acquitted.
| Table of Content |
|---|
| 1. overview of the case and charges (Para 1 , 2 , 3 , 4 , 5) |
| 2. defense arguments on evidence and procedural issues (Para 8 , 9 , 10 , 11) |
| 3. procedural requirements for evidence handling (Para 12 , 14 , 15 , 20) |
| 4. common intention and evidentiary standards (Para 19 , 21 , 26) |
| 5. final decision to acquit the appellant (Para 28) |
JUDGMENT :
Johnson John, J.
The appellant is the first accused in S.C. No. 186 of 2007 on the file of the Additional Sessions Judge/Special Judge for NDPS Act Cases, Thodupuzha.
2. As per the prosecution case, on 02.08.2005, while the Sub Inspector of Idukki Police Station and party were conducting patrol duty, they got information that the first accused is conducting sale of arrack in her house and accordingly, after forwarding search memorandum to the Magistrate, they reached the house of the first accused at about 4.30 p.m. and searched the house in the presence of the first accused and recovered 2 cans of two litre capacity and a glass from the kitchen. When it is found that the cans contained illicit arrack, the police party attempted to arrest the first accused and then she resisted the arrest and tore her nighty and made loud noise and thereupon, accused Nos. 2 to 4, who are the neighbours of the first accused, reached there with weapons.
3. It is alleged that the second accused was armed with a chopper and she attempted to inflict cut injury on the head of the Sub Inspector and the third accused pelted stones on his back and head. The first accused beat a Police Constable on his left cheek. The fourth accused threatened to cause the death of the Sub Inspector, if in case he caused the arrest of the first accused and the accused are thereby alleged to have prevented the police party from discharging their official duty. Subsequently, after the arrival of the additional police force, they arrested the accused persons and recovered the contraband items.
4. Before the trial court, when the accused persons pleaded not guilty to the charge, PWs 1 to 12 were examined and Exhibits P1 to P23 and MOs 1 to 6 were marked from the side of the prosecution and no evidence adduced from the side of the defence.
5. After hearing both sides and analysing the evidence, the trial court convicted the first accused for the offences under Sections 353, 332, 506(ii) r/w 34 IPC and Section 8(1) r/w 8(2) of the Kerala Abkari Act. For the offence under Section 8(1) r/w 8(2) of the Kerala Abkari Act, she is sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.1,00,000/-; for the offence under Section 353 IPC, she is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-; for the offence under Section 332 IPC, she is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-; and for the offence under Section 506(ii) IPC, she is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-. In default of payment of the respective fine amounts, she is ordered to undergo simple imprisonment for six months for each of the defaults and the same is under challenge in this appeal.
6. Even though, accused Nos. 2 to 4 were also convicted and sentenced for the offences under Sections 353, 332 and 506 (ii) r/w 34 IPC, the judgment dated 24.01.2024 in Crl. Appeal No. 837 of 2008 passed by this Court shows that the said accused are no more and their appeal was dismissed as abated.
7. Heard Sri. Jithin Varghese, the learned counsel for the appellant and Smt. Hasnamol N.S., the learned Public Prosecutor.
8. The learned counsel for the appellant argued that the prosecution has not explained the delay in lodging the FIR and there is no evidence to show that accused Nos. 2 to 4 shared a common intention with the first accused. It is pointed out that no document is produced to show that the Sub Inspector and party were discharging official duty as public servants at the time of occurrence. It is also argued that there is no
