Allowed

Babu v. State of Kerala

Kerala HC13 Jan 2014CRL.A/1791/2003

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court of Kerala overturned the trial court's conviction and sentence for possession and sale of illicit arrack. The Court held the evidence inadmissible because the seizure was conducted by an Assistant Sub Inspector, who lacked statutory authorization under S.R.O.No.321/96, violating the Abkari Act's requirements for authorized officers.

What did the court decide?

The impugned judgment of conviction was set aside; the appellant is acquitted, bail bond canceled, and liberty granted.

Babu Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2014)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE V.K.MOHANAN

¶4

MONDAY, THE 13TH DAY OF JANUARY 2014/23RD POUSHA, 1935

¶5

CRL.A.No. 1791 of 2003 ( )

¶6

AGAINST THE JUDGMENT IN SC 404/2000 of ADDITIONAL SESSIONS COURT FAST TRACK(ADHOC)-II, TRIVANDRUM DATED 14-10-2003

¶7

APPELLANT(S)/ACCUSED:

¶8

BABU, S/O.APPU, KOCHUKOLLAKKARA VEEDU, EDAYAR, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM.

¶9

BY ADV. SRI.SUMAN CHAKRAVARTHY

¶10

RESPONDENT(S)/COMPLAINANT:

¶11

STATE OF KERALA, REP.BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

¶12

BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA

¶13

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

ami/

¶15

V.K.MOHANAN, J.

¶16

Crl.A.No.1791 of 2003

¶17

Dated this the 13^th day of January, 2014.

¶18

J U D G M E N T

¶19

The sole accused in S.C.No.404/00 of the court of

¶20

Additional Sessions Judge, Fast Track (Ad hoc)-II, Thiruvananthapuram, has preferred this appeal challenging the judgment dated 14.10.2003 in the above sessions case, since by the above judgment, the trial court has convicted and sentenced the appellant for the offence under section 55(a) of the Abkari Act.

¶21

The prosecution case is that on 8.7.1999 at about 6.40 a.m., the accused was found in possession of 8 ltrs. of arrack in a 10 ltr. black plastic can and about one ltr. of arrack in a 1.5 ltr. plastic bottle for sale. When the accused faced the trial in S.C.No.404/00, a formal charge was framed against him for the offence punishable under section 55(i) of the Act, which denied by the accused when

¶22

Crl.A.No.1791 of 2003

¶23

¶24

the said charge read over and explained to him. So, the trial was proceeded further, during which, PWs.1 to 6 were examined and Exts.P1 to P3 were marked and M.Os.1 to 3 were identified. Finally, the learned Judge has found the case in favour of the prosecution and held that the accused has committed the offence under section 55(i) of the Abkari Act and accordingly he is sentenced to undergo rigorous imprisonment for 3½ years and to pay a fine of `1 lakh for the offence under section 55(i) of the Abkari Act and in default, he is directed to undergo rigorous imprisonment for a further period of one year. Set off is allowed. It is the above finding and order of conviction and sentence that are challenged in this appeal.

¶25

Heard Adv.Sri.Suman Chakravarthy, the learned counsel for the appellant and Adv.Smt.T.Y.Laliza, the learned Public Prosecutor for the State.

¶26

During the trial of the case, PWs.2 and 5 are examined mainly to substantiate the prosecution allegation about the seizure of the contraband article from the

¶27

Crl.A.No.1791 of 2003

¶28

¶29

possession of the accused and the detection of the crime. PW2 is the then Police Constable and PW5 is the then Assistant Sub Inspector of Poonthura Police Station. According to them, on 8.7.1999, they proceeded in a police jeep along with two other Police Constable to Edayar and on reaching there, PW5 informed the police party that they are going to nab the accused who is reportedly engaged in the business of selling illicit arrack and when they walked towards south and reached the coconut grove belonged to one Sadanandan, they saw the accused pouring the arrack from M.O.1 plastic can into M.O.2 plastic bottle and on seeing the police party, the accused ran away and though the police party chased him, their attempt fails as the accused jumped into the nearby river and escaped towards the seashore. When PWs.2 and 5 examined, they identified M.Os.1 and 2, and M.O.3 glass tumbler found near the place of occurrence. They have also stated about the preparation of the mahazar for the seizure of the material objects. Ext.P2 is the mahazar. The further investigation

¶30

Crl.A.No.1791 of 2003

¶31

¶32

was undertaken by PW6, the then Sub Inspector of Poonthura Police Station, who finally laid the charge. PW1, the chemical examiner, was also examined in this case and he identified Ext.P1 certificate. These are the evidence and materials on record, that are relied on by the learned Judge of the trial court in support of his finding.

¶33

The learned counsel for the appellant, among several other contentions, it is pointed out that in the present case, the seizure was affected by PW5, who was then working as Assistant Sub Inspector, and he was not empowered or authorized for the seizure and therefore the trial court is wrong in convicting the appellant. According to me, the above submission of the learned counsel is supported by the decision of this Court in Sabu Vs. State of Kerala (2007(4) KLT 169) . In the above decision, it is held that, “As per S.4 of the Abkari Act, the Government of Kerala is empowered to authorize an Officer of the State to detect or investigate an offence contemplated under the

¶34

Crl.A.No.1791 of 2003

¶35

¶36

provisions of the Abkari Act. The Government of Kerala had

¶37

notified that all police officers above the rank of Sub Inspector of Police is empowered to discharge all the duties conferred on an Abkari Officer.” It is further held that, “In the light of S.R.O.No.321/96, PW3 who was only, a Assistant Sub Inspector of Police was not empowered to detect or investigate the offence. If so, the evidence of PW3 corroborated by the evidence of PWs.4 and 5 would not prove any case against the appellant.” The facts in the present case are identical to the facts and circumstances involved in the case reported in the above decision. In the present case also, the offence is detected by the Assistant Sub Inspector of Police, who is examined as PW5 and PW2 is a Police Constable involved in the detection and seizure of contraband article. From the facts involved in the case, it is also relevant to note that the police party proceeded to the place of occurrence on getting prior information. In spite of that, the prosecution

¶38

Crl.A.No.1791 of 2003

¶39

¶40

has miserably failed to show why an authorized officer was not deputed or authorised to detect the crime and to arrest the accused, in stead of an Officer, being the rank of Sub Inspector of Police, who will come under the provisions of S.R.O.No.321/96 referred in the above decision. So, according to me, on the above point alone, the appellant/ accused is entitled to get an acquittal and consequently the other grounds urged by the learned counsel for the appellant are left open.

¶41

In the result, this appeal is allowed, following the decision reported in Sabu Vs. State of Kerala (2007(4) KLT 169) and also the latest decisions reported in Subrahmaniyan Vs. State of Kerala (2010(2) KLT 470) , Sasidharan Vs. State of Kerala (2012(2) KLT 392) and Parathi Sasidharan Vs. State of Kerala (2012 (2) ILR (Kerala series) page 480) . Accordingly, the impugned judgment dated 14.10.2003 in S.C.No.404/00 of the court of Additional Sessions Judge, Fast Track (Ad hoc)II, Thiruvananthapuram, is set aside and the appellant is

¶42

Crl.A.No.1791 of 2003

¶43

¶44

acquitted of all the charges levelled against the appellant/ accused and the bail bond if any executed by him, shall stand canceled and he is set at liberty. The amount if any already deposited by the appellant in terms of the order dated 29.10.2003 in Crl.M.A.No.11465/03 in the above appeal, shall be returned, in case an application is moved in this regard.

¶45

Sd/-

¶46

V.K.MOHANAN, Judge

¶47

ami/

¶48

//True copy//

¶49

P.A. to Judge

Babu v. State of Kerala

Case brief

What is this about?

What did the court decide?

Babu v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Saraswathi Vs State of Kerala

State,Rep.by Public Prosecutor,H.C.,Ekm. Vs Paramasivan,S/O.Pachiyappan,Chittur

Santha D/O.Sarasamma Vs State of Kerala

Abraham @ Avarachan Vs Dy.Supdt of Police,Aluva

State of Kerala Vs Raju

Anil Kumar Vs State of Kerala