Allowed

Gopalan v. State of Kerala

Kerala HC19 Dec 2016CRL.A/1090/2009

Case brief

AI extract

What is this about?

The Kerala High Court allowed an appeal against a conviction under Section 8(2) of the Abkari Act, setting aside the sentence. The court held that the criminal appeal was illegal because the Crime and Occurrence report was registered by a Preventive Officer who was not competent or authorized to perform duties under Sections 40 to 53 of the Act due to lack of proper appointment proof.

What did the court decide?

The conviction and sentence passed by the court below were set aside and the appellant was acquitted.

Gopalan 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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MONDAY, THE 19TH DAY OF DECEMBER 2016/28TH AGRAHAYANA, 1938

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CRL.A.No. 1090 of 2009 (A)

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JUDGMENT DATED 12-5-2009 IN SC 409/2007 OF DISTRICT & SESSIONS COURT (NDPS ACT CASES), VADAKARA

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APPELLANT(S)/ACCUSED:

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GOPALAN, AGED 45 YEARS,

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S/O. POKKAN, KIZHAKKE KULANGARA CHALIL (H), PALAYAD AMSOM CHELLETTUPOYILIL DESOM, VATAKARA TALUK.

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BY ADVS.SRI.MANJERI SUNDERRAJ SMT.K.K.PREETHA

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RESPONDENT(S)/COMPLAINANT:

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1. EXCISE INSPECTOR, EXCISE RANGE OFFICE, VATAKARA, CRIME NO. 23/2005,

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REP; BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SENIOR PUBLIC PROSECUTOR SRI.C.S.HRITHWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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CRL.A.No. 1090 of 2009

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----------------------

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APPENDIX

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PETITIONER(S)' ANNEXURES:

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ANNEX 1 CERTIFIED COPY OF IMPUGNED JUDGMENT IN SESSIONS CASE NO.409/2007 OF THE SPECIAL JUDGE (NDPS ACT CASES) ADDL. DISTRICT & SESSION JUDGE, VATAKARA.

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RESPONDENT(S)' ANNEXURE

NIL

//TRUE COPY//

P.S.TO JUDGE

msv/

B. KEMAL PASHA, J.

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................................................................ Crl. Appeal No. 1090 of 2009 ............................................................... Dated this the 19^th day of December, 2016

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J U D G M E N T

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The accused in S.C.No.409/07 of the Additional Sessions Court, Vatakara, 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 six more months, has come up in appeal.

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The prosecution case is that on 15.03.2005 at 6.30 a.m., the accused was found transporting 2 litres of arrack at Palayad amsom, Chellattpoyil desom, in contravention of the provisions of the Abkari Act.

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The offence was detected by PW1, Preventive Officer of Excise, Vatakara. He placed the accused under arrest through Ext.P1 arrest memo and seized the

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Crl. Appeal No. 1090 of 2009

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-: 2 :-

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contraband through Ext.P2 mahazar. A sample of 180 ml was drawn. On reaching the excise office, he registered Ext.P3 crime and occurrence report. Properties were produced before court on the same day itself through Ext.P4 property list. PW6 Excise Inspector, Vatakara conducted the investigation and filed the final report on getting Ext.P9 certificate of chemical analysis, which shows that the sample contained 41.30% by volume of ethyl alcohol.

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On the side of the prosecution, PWs.1 to 7 were examined and Exts.P1 to P9 were marked. No defence evidence was adduced. 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 the learned Senior Public Prosecutor.

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The learned counsel for the appellant has argued that the case before the court below as such was illegal

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Crl. Appeal No. 1090 of 2009

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-: 3 :-

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since the Crime and Occurrence report was registered by PW1, who was not competent or authorised to do the same and therefore, the entire proceedings in this case have become illegal.

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It is true that PW1 was the Preventive Officer of Excise, Vatakara. As per notification SRO 234/67, all officers of the Excise Department, not below the rank of Excise Inspectors, were appointed as Abkari officers to perform the acts and duties mentioned in Sections 40 to 53 of the Abkari Act, within the areas for which they were appointed. Admittedly, PW1 was not appointed as the Excise Inspector, Vatakra. Even though PW1 has a case that he was in charge of the Excise Inspector, Vatakra on that date, no document has been produced to prove that he was appointed as Excise Inspector of Vatakara on that particular date. Matters being so, PW1 was not competent or not authorised to perform the acts and duties contemplated under Sections 40 to 53 of the Abkari Act and

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Crl. Appeal No. 1090 of 2009

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-: 4 :-

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therefore, registration of Ext.P3 as well as all further proceedings in this case have become illegal. Matters being so, the conviction and sentence passed by the court below

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are not legally sustainable and the same are 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.

Gopalan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Gopalan v. State of Kerala

Case brief

What is this about?

What did the court decide?

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