Allowed

Francis v. State of Kerala

Kerala HC4 Nov 2013CRL.A/794/2005

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a criminal appeal. It held that an Assistant Sub Inspector of Police had no authority on the date of the incident to investigate offences under the Abkari Act per government notification. Consequently, seizure evidence and the conviction were inadmissible and set aside, acquitting the appellant.

What did the court decide?

Conviction and sentence set aside; appellant acquitted; evidence declared inadmissible; bail bond cancelled and accused set at liberty.

Francis Vs State of Kerala — Kerala HC (2013) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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MONDAY, THE 4TH DAY OF NOVEMBER 2013/13TH KARTHIKA, 1935

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CRL.A.No. 794 of 2005 (F )

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AGAINST THE ORDER/JUDGMENT IN SC 202/2004 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-III, KOLLAM DATED 06-05-2005

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AGAINST THE ORDER/JUDGMENT IN CP 216/2000 of J.M.F.C.-I, KOLLAM

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APPELLANT/ACCUSED NO.1:

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FRANCIS, S/O.ELIAZ,

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NIRAPPUVILA VEEDU, ERUTHANANGADU, KAITHAKKODUMURI, PAVITHRESWARAM VILLAGE.

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BY ADV. SRI.C.RAJENDRAN

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY THE S.I.OF POLICE, EAST KALLADA POLICE STATION (CRIME No. 170/2000) THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.794 of 2005

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Dated this the 04^th day of November, 2013

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JUDGMENT

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The first accused in S.C.No.202 of 2004 on the file of the court of the Additional District and Sessions Judge (Adhoc)-III, Kollam, challenging the judgment dated 06/05/2005 in the above Sessions Case as he is convicted and sentenced for the offence punishable under Section 55(g) and 8(2) of the Abkari Act, preferred this appeal.

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The prosecution allegation is that the accused four in numbers found sitting in a wasteland called Ithikkunnu west belonging to Mathilakom Asramam to the south of the chira varambu leading to Chittumala distilled arrack and possessed implements and apparatus for distillation and also wash, on 13/8/2000 at about 1 A.M. early morning. Thus, according to the prosecution, the accused has committed the offence punishable under Section 55(a), (g), (i) and 8(2) of the Abkari Act. On the above allegation, Crime No.170 of 2000 was registered in the East Kallada Police Station. On completing

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Crl.A.No.794 of 2005

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the investigation, a report was filed. As the other three accused absconded the case against first accused alone was committed to the Sessions Court where S.C.No.202 of 2004 was instituted. Subsequently, the case posted before the present trial court for trial. When the first accused appeared before the court below a formal charge was framed against him, after hearing the prosecution as well as the defence, for the offence punishable under Section 55(g) and 8(2) of the Abkari Act and when the said charge read over and explained to him, he denied the same and pleaded not guilty and therefore the trial was proceeded further, during which the prosecution adduced its evidence by examining PWs.1 to 5 and producing Exts.P1 to P9 documents. MOs.1 to 8 were also identified as material objects.

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Heard Sri.C.Rajendran, the learned counsel for the appellant and Sri.N.Suresh, the learned Public Prosecutor for the State.

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Having regard to the facts and circumstances involved in the case and especially in the light of the settled

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Crl.A.No.794 of 2005

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position that the Assistant Sub Inspector of Police were not authorised to exercise the powers under Sections 40 to 53 of the Kerala Abkari Act, on the date of the alleged incident i.e., on 13/8/2000, particularly in view of the notification issued by the Government of Kerala vide SRO.No.324 of 1996, the appeal deserves to be allowed. Admittedly in the present case, the seizure was effected by PW.3, who was then working as Assistant Sub Inspector of Police and who was in charge of the Station House Officer of the East Kallada Police Station and who recorded Ext.P1 mahazar. In view of the Division Bench decision in Subash Vs. State of Kerala [2008(2)KLT 1047] , and in view of the decisions in Sabu Vs. State of Kerala [2007(4) KLT 169] , Unni Vs. State of Kerala [2009(2) KHC661] , and in Thankamony Vs. State of Kerala [2007 KHC 3806], particularly in view of the fact that on the date of the incident, in the present case the Assistant Sub Inspectors of Police Department, Kerala were not authorised or empowered as per the notification issued by the Government, to detect or investigate the abkari offences and therefore the

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Crl.A.No.794 of 2005

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evidences connected with the detection of the present crime, seizure of the contraband article, etc., are inadmissible as the same collected by the officer, who was not authorised. Hence, the findings arrived by the court below and its judgment, which is impugned in this appeal, are unsustainable and liable to be set aside.

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In the result, this appeal is allowed setting aside the judgment dated 6/5/2005 in S.C.No.202 of 2004 of the court of the Additional District & Sessions Judge, (Adhoc)-III, Kollam and the conviction recorded therein is also set aside and the appellant/accused is acquitted of all the charges levelled against him and bail bond, if any, executed by him stands cancelled and he is set at liberty.

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V.K.MOHANAN, JUDGE

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skj

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True copy P.A. to Judge

Francis v. State of Kerala

Case brief

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Francis v. State of Kerala

Case brief

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