This criminal appeal acquitted the appellant. The High Court held that an Assistant Sub-Inspector of Police was not authorized under the Abkari Act to conduct a seizure and arrest for illicit distillation in October 2002, rendering the proceedings invalid.
Accused acquitted; conviction and sentence set aside; bail bond cancelled; accused set at liberty.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2013/15TH KARTHIKA, 1935
CRL.A.No. 1079 of 2005
AGAINST THE ORDER/JUDGMENT IN SC 20/2005 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA DATED 31-05-2005
APPELLANT: ACCUSED :
RAGHAVAN, KOLATT HOUSE, KOLATT, NOOLPUZHA, SULTHAN BATHERY.
BY ADV. SMT.K.V.RASHMI
RESPONDENTS/COMPLAINANT/STATE::
BY PUBLIC PROSECUTOR SRI.E.M.ABDUL KHADIR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
Crl.A.No.1079 of 2005
Dated this the 06th day of November, 2013
JUDGMENT
The above appeal is directed against the judgment dated 31/5/2005 in S.C.No.20 of 2005 of the court of the Additional Sessions Judge (Adhoc)II, Kalpetta at the instance of the sole accused therein, challenging his conviction and sentence for the offence under Section 55(a), (b) & (g) of the Abkari Act.
Crl.A.No.1079 of 2005
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appeared, after hearing the prosecution as well as the defence the learned Judge framed a formal charge against the accused for the offence punishable under Section 55(a)(b) & (g) of the Abkari Act which when read over and explained to the accused he denied the same and pleaded not guilty. Consequently the prosecution from their part examined PWs.1 to 7 and produced Exts.P1 to 8 documents. MOs.1 to 7 were also identified and marked as material objects. Finally, the trial court found that the prosecution has clearly succeeded in proving its case and accordingly found that the accused is guilty for the offence charged against him and accordingly he is convicted thereunder. Consequently the accused is sentenced to undergo simple imprisonment for three years and to pay fine of `1,00,000/- in default he is directed to undergo simple imprisonment for three months under Section 55(a) of the Abkari Act. According to the learned Judge, as the other offences namely under Sections 55(b) & (g) are committed during the same transaction, no separate sentence is required and not awarded. However, set off is allowed under Section
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428 of Cr.P.C. It is the above finding and order of conviction and sentence that are challenged in this appeal.
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in force, as on 24/10/2002 the ASI of Police are not authorised officer to detect the offence under Section 55 of the Abkari Act. The position is now well settled in view of the decision of the Division Bench reported in Subash Vs. State of Kerala [2008(2)KLT 1047] , Thankamony Vs. State of Kerala [2007 KHC 3806], Sabu Vs. State of Kerala [2007(4) KLT 169] , and finally as per the decision of this Court reported in Unni Vs. State of Kerala [2009(2)KHC661] . In the light of the above settled position particularly in view of the authorities cited supra and on the basis of the undisputed fact that the search and seizure was made by PW.1, who was then working as ASI, Sulthanbathery Police Station on 24/10/2002, on which date he was not authorised or empowered to exercise any such powers as contemplated by the Abkari Act and therefore on the above sole ground the appeal is bound to be allowed by acquitting the accused.
In the result, this appeal is allowed setting aside the judgment dated 31/5/2005 in S.C.No.20 of 2005 of the court of the Additional Sessions Judge, (Adhoc)-II, Kalpetta and the
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appellant/accused is acquitted of all the charges levelled against him and the bail bond, if any, executed by him stands cancelled and he is set at liberty.
V.K.MOHANAN, JUDGE
skj
True copy
P.A. to Judge
1 issue framed by the court
Whether the conviction should be set aside because the investigating officer was not authorized under the Abkari Act to conduct the search, seizure, and arrest.
Colour shows how this judgement treated each authority
Subash vs. State of KeralaReferred¶29
Subash Vs. State of Kerala [2008(2)KLT 1047]
Thankamony vs. State of KeralaReferred¶29
Thankamony Vs. State of Kerala [2007 KHC 3806]
Sabu vs. State of KeralaReferred¶29
Sabu Vs. State of Kerala [2007(4) KLT 169]
Unni vs. State of KeralaReferred¶29
Unni Vs. State of Kerala [2009(2)KHC661]
2 provisions across 1 enactments
Ragavan
The State of Kerala
V.K. Mohanan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
