Allowed

Unnikrishnan v. State of Kerala

Kerala HC10 Aug 2016CRL.A/107/2009

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal, holding that conviction under the Abkari Act was unsustainable. The Assistant Excise Inspector, who registered the crime, failed to prove his appointment as an Abkari Officer, rendering proceedings illegal. Additionally, unexplained delay in producing the sample vitiated the trial.

What did the court decide?

Conviction and sentence set aside; appellant stands acquitted.

Unnikrishnan Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2016)

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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 B.KEMAL PASHA

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WEDNESDAY, THE 10TH DAY OF AUGUST 2016/19TH SRAVANA, 1938

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CRL.A.No. 107 of 2009

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SC.728/2006 OF ADDL.DISTRICT & SESSIONS COURT (ADHOC)III, PATHANAMTHITTA DATED 22-12-2008 CP.70/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PATHANAMTHITTA

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PETITIONER/ACCUSED:

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UNNIKRISHNAN, S/O. GOPALAN NAIR, CHARIVUKALAYIL, MYLADUMPARATHAZHAM MURI, PATHANAMTHITTA, KOZHENCHERRY TALUK.

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BY ADV. SRI.R.SANTHOSH BABU

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA, REP. BY THE EXCISE INSPECTOR, KONNI, THROUGHT PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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BY PUBLIC PROSECUTOR SMT.P.MAYA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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................................................................ Crl. Appeal No. 107 of 2009 ............................................................... Dated this the 10^th day of August, 2016

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J U D G M E N T

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The appellant is the accused in S.C.No.728/2006 of the Additional Sessions Court(Adhoc-III), Pathanamthitta, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of ₹1 lakh, in default, to undergo rigorous imprisonment for three more months.

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The prosecution case is that on 31.10.2003 at 12.35 p.m. the appellant was found transporting 2 litres of arrack through Kaleeckalpadi - Malayalappuzha road, in contravention of the provisions of the Abkari Act. The offence was detected by PW5 Preventive Officer attached to the Excise Enforcement and Anti-narcotic Special Squad, Pathanamthitta. He placed the appellant under arrest through Ext.P3 arrest memo and seized the contraband

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Crl. Appeal No. 107 of 2009

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through Ext.P2 mahazar. A sample of 200 ml was drawn. Thereafter, he produced the appellant along with the contraband, the sample and the records before PW6 Assistant Excise Inspector, Konni. PW6 registered Ext.P6 crime and occurrence report. He produced the appellant and the properties before court. Ext.P7 is the property list. He furnished the forwarding note, the copy of which is Ext.P9. PW7, who was the Excise Inspector of Konni, conducted the investigation and filed the complaint on getting Ext.P10 certificate of chemical analysis.

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On the side of the prosecution, PWs.1 to 7 were examined, Exts.P1 to P10 were marked and MO1 was identified. On the side of the accused, DW1 was examined and Ext.D1 was marked. The court below found the accused guilty of the offence punishable under Section 8(2) of the Abkari Act, convicted him thereunder and sentenced him as aforesaid.

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Heard the learned counsel for the appellant and

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Crl. Appeal No. 107 of 2009

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the learned Public Prosecutor.

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The learned counsel for the appellant has argued that this is case wherein there is gross illegality in the registration of the crime as such and therefore, all the proceedings in the case have become illegal. It is argued that the court below ought not to have convicted and sentenced the accused.

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PW5 Preventive Officer attached to the Excise Enforcement and Anti-narcotic Special Squad, Pathanamthitta had detected the offence. He seized the contraband through Ext.P2 mahazar, and the sample was drawn. He produced the contraband, the sample and the records before PW6, who was the Assistant Excise Inspector. PW6 registered Ext.P6 crime and occurrence report.

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As per notification SRO 234/1967 all officers of

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the Excise Department not below the rank of Excise Inspector were appointed as Abkari Officers to perform the

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Crl. Appeal No. 107 of 2009

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acts and duties contemplated under Sections 40 to 53 of the Abkari Act, within the area for which they were appointed. Even though PW6 has got a case that he was in charge of the Excise Inspector, Konni, the prosecution has not produced and proved any document to show that PW6 was appointed as the Excise Inspector of Konni, within the meaning of the aforesaid notification as on the date on which the crime was registered. In view of the notification noted supra, PW6 had no power or authority to register the crime. Since he was not competent to register the crime, all the proceedings in the case have become illegal.

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The seizure in this case was on 31.10.2003. From the evidence of PW1, it has come out that the sample was produced before court on 03.11.2003 only. There is delay in the production of the sample before the court below. The said delay has not been explained. From all the above, it has come out that the conviction and sentence passed by the court below are not legally sustainable and the same are

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Crl. Appeal No. 107 of 2009

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liable to be set aside.

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In the result, this Criminal Appeal is allowed, and the conviction and sentence passed by the court below are set aside. The appellant stands acquitted.

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/-

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// true copy //

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P.S. to Judge.

Unnikrishnan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Unnikrishnan v. State of Kerala

Case brief

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What did the court decide?

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