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2025 Supreme(Online)(Ker) 36762
IN THE HIGH COURT OF KERALA AT ERNAKULAM
JOBIN SEBASTIAN, J
VISWANATHAN – Appellant
Versus
SUB-INSPECTOR OF POLICE – Respondent
CRL.A NO. 273 OF 2010
For the Appellant: SRI.T.G.RAJENDRAN
For the Respondent: SRI. ALEX M THOMBRA
Procedural flaws in evidence collection, such as non-production of crucial documents, can invalidate a conviction under the Abkari Act.
Headnote:(A) Abkari Act - Section 8(2) r/w 8(1) - Charge of possession and brewing of arrack - Accused was found in possession of contraband along with implements for brewing - Procedural lapses including non-production of vital documents like seizure mahazar and property list leading to fatal flaws in the prosecution case. (Paras 7-11)
(B) Evidence - Hostility of witnesses - Witnesses in Abkari cases often turn hostile; however, when relying on the official witness's testimony, the court must ensure procedural integrity. (Paras 9-10)
Facts of the case:
The accused was convicted for possessing and brewing arrack but contended that he was falsely implicated due to procedural flaws in evidence collection. The prosecution did not satisfactorily establish the chain of possession.
Findings of Court:
Non-production of crucial procedural documents rendered the prosecution’s case unconvincing; hence, the accused's conviction was overturned.
Issues: The court primarily examined the credibility of the evidence and procedural compliance related to the contraband seizure.
Ratio Decidendi: For a conviction to stand in narcotics cases, procedural adherence in evidence collection is paramount; without proper documents, a conviction cannot be upheld.
Result: Appeal allowed, conviction and sentence set aside, accused acquitted.
| Table of Content |
|---|
| 1. accused appealed against conviction for possession and brewing of contraband. (Para 1 , 2) |
| 2. trial details and procedural history of the case. (Para 3 , 4 , 5) |
| 3. claims of innocence and procedural shortcomings in the prosecution's evidence. (Para 6 , 7) |
| 4. significance of procedural integrity and the impact of hostile witnesses. (Para 8 , 9 , 10 , 11) |
JUDGMENT
The sole accused in S.C.No.22/2007, on the file of Additional Sessions Court (Adhoc-II) Kozhikode has preferred this appeal challenging the judgment of conviction and order of sentence passed against him for the offence punishable under Section 8 (2) r/w 8(1) of the Abkari Act .
2. The prosecution allegation, in brief is that, on 22.10.2005 at 12.00 noon, the accused was found in possession of 3 ½ litres of arrack and 15 litres of wash and other implements for brewing arrack and engaged in brewing of arrack inside the kitchen of his house bearing No.38/608 of Kozhikode Corporation, in contravention of the provisions of the Abkari Act , and thereby committed an offence punishable under Section 8 (2) r/w 8(1) of the .
3. Upon conclusion of the investigation, the final report was laid before the Judicial First Class Magistrate Court, Koyilandi. Being satisfied that the case is one exclusively triable by a court of Session, the learned Magistrate, after complying with all legal formalities, committed the case to the Court of Session, Kozhikode, under Section 209 of Cr.PC. The learned Sessions Judge, having taken cognizance of the offence, made over the case to the Additional Sessions Court (Adhoc-II), Kozhikode, for trial and disposal. On the appearance of the accused before the trial court, the learned Additional Sessions Judge, after hearing both sides under Section 227 of Cr.P.C. and upon perusal of the records, framed a written charge against the accused for an offence punishable under Section 8 (2) r/w 8(1) of the Abkari Act . When the charge was read over and explained to the accused, he pleaded not guilty and claimed to be tried.
4. The prosecution, in its bid to prove the charge levelled against the accused, has altogether examined four witnesses as PW1 to PW4, and marked Exts.P1 to P8. MO1 series was exhibited and identified. After the completion of prosecution evidence, the accused was questioned under Section 313 Cr.P.C., during which he denied all the incriminating materials brought out against him. On finding that the accused could not be acquitted under Section 232 of Cr.P.C., he was called upon to enter on his defence and adduce any evidence he may have in support thereof. But no evidence, whatsoever, was adduced from the side of the accused.
5. After trial, the accused was found guilty of the offence punishable under section 8(2) r/w 8(1) of the Abkari Act , and he was convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1 Lakh. In default of payment of fine, the accused was ordered to undergo rigorous imprisonment for a further period of six months. Aggrieved by the said judgment of conviction and the order of sentence passed, the present appeal has been preferred.
6. I heard learned counsel for the appellant and the learned Public Prosecutor.
7. The learned counsel for the appellant submitted that the accused is innocent of the allegations levelled against him and that he was falsely implicated in this case. According to the counsel, the accused had no connection whatsoever with the contraband allegedly seized in this case, and the house from where the same was allegedly seized. It is urged that the accused was implicated based on surmises and conjectures. According to the counsel in the case at hand, there is absolutely no material to show that the sample of wash and arrack that was got analyzed in the laboratory is the very same sample drawn from the contraband seized in this case. It is pointed out that the seizure Mahazar allegedly prepared contemporaneous with the detection of this case is no
