Violation of Sections 53A and 38 of Abkari Act Entitles Accused to Benefit of Doubt : Kerala High Court Acquits Two in Illicit Liquor Case
Safiya Malik
The High Court of Kerala, Single Bench of Justice Johnson John allowed an appeal filed by two persons convicted under Section 8(2) of the Abkari Act, setting aside their conviction and sentence. The Court held that when the mandatory requirements under Sections 53A and 38 of the Act are violated, the accused is entitled to the benefit of doubt. In this case, the prosecution failed to demonstrate compliance with statutory procedures governing sample collection, sealing, and forwarding, and did not establish a secure chain of custody linking the seized liquor to the chemical examination. Observing that such lapses vitiated the prosecution’s case, the Court concluded that the accused were entitled to acquittal and ordered their immediate release.
The case arose from an incident in which officers of Kumbla Police Station intercepted an autorickshaw at Mukkarikandam and found six plastic sacks containing 3,000 packets of arrack, each of 100 millilitres. The vehicle was driven by the first accused, with the second accused travelling as a passenger. Both were arrested for alleged unlawful possession and transportation of arrack in contravention of Section 8(2) of the Abkari Act.
During trial, the prosecution examined six witnesses and produced several exhibits, including the seizure mahazar, property list, and chemical analyst’s report confirming the presence of ethyl alcohol in the samples. The defence did not adduce evidence. The Sessions Court convicted both accused and imposed a sentence of rigorous imprisonment and fine.
In appeal, the accused contended that the prosecution failed to comply with mandatory procedural safeguards under Sections 53A and 38 of the Abkari Act. It was argued that the seizure mahazar and property list did not contain the specimen impression of the seal used, independent witnesses had turned hostile, and the samples were not drawn in the presence of a Magistrate. The appellants also pointed out an unexplained delay in forwarding the samples to the Chemical Examiner’s Laboratory and failure to prove a tamper-proof chain of custody.
The prosecution maintained that the detection officer’s evidence, corroborated by the chemical report, proved the offence. The appellate scrutiny centred on whether procedural lapses in sealing, forwarding, and verifying the contraband and samples undermined compliance with the mandatory requirements of the Abkari Act
Justice Johnson John observed that the independent witnesses did not support the prosecution and that “PWs 2 and 3, the independent witnesses examined by the prosecution, turned hostile to the prosecution stating that they have not witnessed the alleged occurrence.” The Court scrutinized the evidence of PW6, the detecting officer, and found critical procedural lapses. The judgment recorded: “Even though PW6 stated that he affixed label and sealed the sample bottles by using the seal of the SHO, he has not deposed anything regarding the nature of the seal used.” The Court further noted that “the specimen impression of the seal is not seen affixed in Exhibit P2, seizure mahazar, or Exhibit P7, property list.”
It observed that “the prosecution has no case that representative samples of the contraband liquor were drawn in the presence of the Magistrate as required under Section 53A(2)(c).” The Court cited Andikutty v. State of Kerala [2023 KHC 777], which held that violation of Section 53A vitiates the entire prosecution.
The judgment also referred to Vijayan @ Puthoor Vijayan v. State of Kerala [2021 (5) KHC 347], summarizing the procedural safeguards to ensure transparency and prevent tampering. It quoted, “Collection of sample from the alleged contraband by the officer concerned shall be transparent eschewing possibility of tampering... The officer shall describe the nature of the specimen seal in the mahazar and the specimen seal shall be affixed on the mahazar, on the sample bottle, bottle containing the remaining part of contraband and the forwarding note.”
The Court further relied on precedents including Sasidharan v. State of Kerala [2007 (1) KLT 720], and observed: “Exhibit P8, copy of the forwarding note, is dated 03.10.2006, but Exhibit P5, report of the chemical examiner, would show that the sample was produced... only on 26.10.2006.”
Justice John also noted violations of Section 38 of the Abkari Act, observing that “PW6 has no case that he complied the mandate of Section 38... he admitted that after recording the crime number in the arrest memo, he erased the same.” The Court found the investigation incomplete, observing that the Investigating Officer had not verified the autorickshaw’s registration details.
Justice Johnson John stated: “In this case, there is violation of the mandate of Sections 53A and 38 of the Abkari Act and there is also no satisfactory evidence to establish a fool proof chain of custody to prove that it was the sample taken from the contraband liquor which ultimately reached the hands of the chemical examiner in a fool proof condition and therefore, I find that the appellants are entitled for the benefit of reasonable doubt.”
“Since the trial court failed to consider the above vital aspects while appreciating the evidence, the conviction and sentence passed by the trial court cannot be sustained.” The final directive read: “In the result, this appeal is allowed. The conviction and sentence imposed by the trial court against the accused/appellants is hereby set aside and they are acquitted of the offence under Section 8(2) of the Abkari Act.”
“Bail bonds executed by the appellants shall stand cancelled and they are set at liberty forthwith.”
Advocates Representing the Parties
For the Appellants: Sri. P. Mohamed Sabah, Smt. Saipooja, and Shri. Faizel K.
For the Respondent: Smt. Hasnamol N.S., Public Prosecutor.
Case Title: Prabhu Prakash and M. Suresh v. State of Kerala
Neutral Citation: 2025: KER:74579
Case Number: Crl. Appeal No. 1184 of 2010
Bench: Justice Johnson John
