High Court allowed criminal appeal against conviction and sentence under Section 8(2) of Abkari Act. Conviction set aside due to involvement of incompetent officer in case stages and absence of specimen seal in forwarding note, leading to acquittal.
Accused acquitted. Conviction and sentence set aside. Bail bond cancelled and 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 P.BHAVADASAN
THURSDAY, THE 19TH DAY OF NOVEMBER 2015/28TH KARTHIKA, 1937
CRL.A.No. 432 of 2006
AGAINST THE JUDGMENT IN SC 1059/2004 of ADDITIONAL DISTRICT & SESSIONS COURT(ADHOC) III, KOLLAM DATED 17-01-2006
APPELLANT/ACCUSED:
SRI.FELIX, S/O.JOHN, VINOD BHAVAN, KALEEKKAL THEKKATHIL, MUNDAKKAL EAST, KOLLAM TALUK.
BY ADVS.SRI.C.UNNIKRISHNAN (KOLLAM) SRI.S.HARIKRISHNAN
RESPONDENT/COMPLAINANT:
BY SMT. LILLY LESLIE, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.BHAVADASAN, J.
Crl. Appeal No.432 OF 2006
Dated this the 19th day of November, 2015.
J U D G M E N T
The accused in this case was prosecuted for the offence punishable under Section 8(2) of Abkari Act. He was found guilty and was therefore convicted and sentenced to suffer simple imprisonment for one year and to pay a fine of Rs.1 lakh with default clause of simple imprisonment for three months. Set off as per law was allowed.
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identified as arrack. PW1 took sample of 200ml in a bottle having capacity of 375ml and sealed and labeled the same. The labels contained the signature of accused, witnesses and PW1. He then handed over the accused, records and articles to the Excise Office. Ext.P3 is the mahazar prepared by him. Ext.P1 is the arrest memo and Ext.P2 is the arrest notice prepared by PW1. He says that the seal affixed by him is 'CSN'.
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of offence under Section 8(1) of Abkari Act.
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chose to adduce no evidence.
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done by him is non est in law. The second contention is that the forwarding note namely, Ext.P7 does not contain the sample seal and that is fatal to the prosecution. For the said proposition, learned counsel relied on the decision in Krishnan vs. State (2015 (2) KLT SN 8). Therefore, learned counsel contended that these vital aspects have been omitted to be noticed by the court below and they go to the root of the prosecution case and the conviction and sentence are bad in law.
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H & C compound, they saw the accused coming along with a bottle having a capacity of 1 liter. Feeling suspicious, he was intercepted and the bottle was seized and the contents were identified as arrack. Both of them say about sample having been taken by PW1. They also say about sealing and labeling of the sample and the contraband article. Both of them say that they returned to the station and handed over the accused, articles and records to the officer then present there.
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Abkari Officer shall not be exercised by an Assistant Excise Inspector.
be relied on. It was held in the said decision as follows:
“13. On a reading of S. 50, it is crystal clear that the court can take cognizance only upon a valid report filed by “competent officer after investigation of the case as provided under S. 50 of the Act”. S.40 deals with procedure on arrest and seizure. S.41 deals with disposal of persons arrested. Going by various provisions of the Act, it can be seen that wide powers are given to “Abkari Officers” and “Abkari Inspectors”. Besides that, S.50 is more particular that, only “report of Abkari Officer” gives jurisdiction to a competent Magistrate and only on such report, the Magistrate can take cognizance. In the present case, PW1 who was working as an Assistant Excise Inspector was not given powers under the above provisions to effect seizure and investigation. He was also not competent due to absence of conferment of
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powers under S.50, to file “Report” or complaint. A trial conducted based upon a report of an incompetent officer will render as “non est .”.....”.
It is therefore clear that PW5 was incompetent to exercise the powers under Sections 40 to 53 of Abkari Act.
“Ext.P5 is a copy of the Forwarding Note submitted before the court for sending sample for subjecting it to chemical analysis. A specific space is provided in the Forwarding Note for affixing the sample seal. No such sample seal was affixed on Ext.P5. Whether the sample seal was affixed on the original of Ext.P5 sent to the Chemical Examiner? Normally, if the sample seal is not appearing in the copy of the Forwarding Note, in this case it is Ext.P5, it has to be presumed that such sample seal was not affixed on the original Forwarding Note unless proved otherwise. A copy
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of the Forwarding Note is kept in the office of the court for serving certain purposes. The purposes are evidence from the contents of the form of the Forwarding Note itself. They include the quantity and description of the sample drawn from the bulk of the contraband, the details of the case and the space for providing the sample impression of the seal affixed on the sample taken from the bulk of the contraband. Therefore, as already stated, the absence of sample seal in the space provided in the copy of the Forwarding Note. Is sufficient reason for presuming that the sample seal is not provided in the original Forwarding Note. Of course, this is only a rebuttable presumption. In the case on hand, such presumption has not been rebutted by the prosecution.”
prosecution to affix the sample seal in the space provided in the copy of forwarding note and any failure to do so invites chances of an acquittal. Unless that is provided, it is not possible to ascertain whether the sample sent for chemical analysis is the sample collected from the contraband seized from the possession of the accused. If that be the position, in the case on hand, for
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want of specimen seal, necessarily, the prosecution has to fail.
For the above reasons, this appeal is allowed. The conviction and sentence passed by the court below are set aside and it is held that the accused is not guilty of the offence. He stands acquitted of the charges levelled against him. His bail bond shall stand cancelled and he is set at liberty.
Sd/-
P.BHAVADASAN JUDGE
smp
// True Copy //
P.A to Judge.
2 issues framed by the court
Whether conviction and sentence are bad in law due to acts by incompetent officer and absence of sample seal in forwarding note.
Whether non-foeal report by incompetent officer renders trial non est and requires acquittal.
Colour shows how this judgement treated each authority
Krishnan vs. StateFollowed¶39
Krishnan vs. State (2015 (2) KLT SN 8)
Subrahmaniyan vs. State of KeralaFollowed¶49
Subrahmaniyan vs. State of Kerala (2010 (2) KLT 470)
Sri.Felix
State of Kerala
P.Bhavadasan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
P.Bhavadasan
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