Court’s Decision
The Kerala High Court set aside the conviction of a woman accused under Sections 353, 332, 506(ii) read with 34 of the Indian Penal Code and Section 8(1) read with 8(2) of the Kerala Abkari Act. The Court held that the prosecution had failed to establish key procedural safeguards, including proof of tamper-proof sampling of alleged contraband liquor, proper identification of the accused, ownership of the house, and common intention with co-accused. It concluded that the trial court erred in convicting her and directed her acquittal, observing that “the prosecution miserably failed to establish ownership, possession or conscious control over the contraband and to prove compliance with procedural mandates.”
Facts
On 2 August 2005, the Sub-Inspector of Police, Idukki, allegedly received information that the appellant was selling illicit arrack from her residence. A search was conducted after forwarding a memorandum to the Magistrate. Police claimed to have seized two cans containing illicit liquor and a glass from the kitchen.
When the police attempted to arrest her, she allegedly resisted, tore her nightdress, and created a commotion, prompting neighbours (accused Nos. 2 to 4) to intervene with weapons. One co-accused allegedly swung a chopper at the Sub-Inspector, another pelted stones, and the appellant allegedly slapped a constable. Additional police reinforcements eventually arrested all accused and seized the items.
The trial court convicted the appellant for both Abkari Act and IPC offences, sentencing her to four years rigorous imprisonment and fines. She challenged the conviction before the High Court.
Issues
- Whether the seizure of illicit liquor and subsequent sampling complied with legal safeguards ensuring tamper-proof custody.
- Whether the identity of the accused and ownership of the house from which the contraband was allegedly seized were proved.
- Whether common intention under Section 34 IPC was established between the appellant and co-accused.
- Whether medical and documentary evidence corroborated the charges of assaulting police officers.
Petitioner’s Arguments
The appellant argued that the FIR was lodged belatedly and unexplained delays undermined the prosecution’s case. She highlighted inconsistencies in the address of the house mentioned in the seizure mahazar and the final report. No Panchayat tax registers were produced to prove ownership.
She also contended that the prosecution failed to affix specimen seal impressions on the seizure mahazar, forwarding note, and property list, raising doubts about tamper-proof handling of seized samples. Further, the doctor’s certificate showed no injury on the constable allegedly slapped by her. Finally, she argued that there was no proper dock identification by key witnesses, rendering the evidence unreliable.
Respondent’s Arguments
The State contended that the testimonies of police officers were reliable and consistent, corroborated by seizure mahazars and contraband items. It argued that common intention could be inferred from the conduct of the accused during the incident, as the neighbours joined in preventing police officers from discharging their duties. It further submitted that procedural lapses, if any, did not materially affect the credibility of the prosecution case.
Analysis of the Law
The Court examined compliance with sampling procedures in light of Vijayan @ Puthoor Vijayan v. State of Kerala [2021 (5) KHC 347], which mandates transparent sampling, affixing specimen seals on mahazar and forwarding note, production before Magistrate without delay, and examination of the Thondy Clerk to prove custody. It held that the prosecution failed to comply with these safeguards.
It also relied on Sasidharan v. State of Kerala [2007 (1) KLT 720], which places a duty on the prosecution to prove beyond doubt that the same sample seized reached the chemical examiner without scope of tampering. Similarly, in Moothedath Sivadasan v. State of Kerala [2021 (1) KLT 744], the Court held that absence of specimen seal impression invalidates reliance on chemical analysis.
On the issue of ownership, the Court cited Om Prakash @ Baba v. State of Rajasthan [2009 KHC 5198], where the Supreme Court held that uncertain ownership or shared possession of premises vitiates charges of conscious possession of contraband.
Regarding identification, the Court referred to Vayalali Girishan v. State of Kerala [2016 KHC 204] and Shaji @ Japan Shaji v. State of Kerala [2021 (5) KHC SN 27], which stressed that in-court identification of the accused is substantive evidence and must be recorded. The Court found such identification absent here.
Precedent Analysis
- Vijayan @ Puthoor Vijayan (2021) — Laid down mandatory steps for tamper-proof sampling; prosecution failed to comply.
- Sasidharan (2007) — Burden lies on prosecution to prove sample’s integrity until chemical examination; not satisfied here.
- Moothedath Sivadasan (2021) — Lack of specimen seal affixation undermines evidence.
- Om Prakash @ Baba (2009 SC) — Uncertain ownership/possession of house weakens case of conscious possession.
- Vayalali Girishan (2016) & Shaji @ Japan Shaji (2021) — In-court dock identification mandatory; absent here.
- Chhota Ahirwar v. State of M.P. [(2020) 4 SCC 126] — Common intention requires pre-arranged plan; not proved in this case
Court’s Reasoning
The Court observed multiple infirmities:
- Sampling: Absence of specimen seal on mahazar, forwarding note, and property list created serious doubts about integrity of samples. Delay in sending them to the laboratory further compounded suspicion.
- Ownership and Possession: Contradictions in the address of the accused and lack of Panchayat records undermined prosecution’s claim that contraband was seized from her house.
- Identification: Except one witness, none of the police officers properly identified the appellant in court.
- Medical Evidence: Doctor’s certificate showed no injuries on the constable allegedly assaulted, contradicting prosecution claims.
- Common Intention: No evidence suggested premeditated plan; co-accused arrived only after hearing noise. Section 34 IPC could not be invoked.
The Court emphasised that criminal conviction cannot rest on speculation but must be based on reliable, cogent, and legally admissible evidence. It concluded that the trial court had overlooked these serious deficiencies.
Conclusion
The High Court allowed the appeal, set aside the trial court’s conviction, and acquitted the appellant of all charges under the Kerala Abkari Act and IPC. It ordered immediate cancellation of her bail bond and directed her release.
Implications
This ruling reiterates the judiciary’s insistence on strict compliance with procedural safeguards in Abkari and NDPS cases. It highlights that tamper-proof sampling, clear identification of accused, proof of possession, and credible medical evidence are essential for sustaining convictions. It further clarifies that Section 34 IPC cannot be applied without proof of a prearranged plan.
The judgment serves as a caution to investigative agencies to avoid casual or mechanical investigations and reinforces constitutional protections against wrongful conviction.
FAQs
Q1. Why was the conviction under the Abkari Act set aside?
Because the prosecution failed to prove tamper-proof sampling, ownership of the house, and conscious possession of contraband.
Q2. Did the Court accept the police version of assault on officers?
No. The Court noted absence of dock identification, lack of medical corroboration, and inconsistencies in evidence.
Q3. Can common intention under Section 34 IPC be presumed from simultaneous acts?
No. The Court held that it requires proof of a prearranged plan; mere simultaneous actions are insufficient.