Allowed

Neelambaran v. Excise Inspector

Kerala HC5 Oct 2016CRL.A/145/2009

Case brief

AI extract

What is this about?

In reference to an appeal against conviction under the Abkari Act for transporting arrack, the High Court of Kerala acquitted the appellant. The Court held that the conviction was unsustainable because the officer registering the report lacked appointment authority for the specific range and there was inordinate delay in producing the sample.

What did the court decide?

Conviction and sentence set aside; Appellant stands acquitted.

Neelambaran Vs Excise Inspector — Kerala HC (2016) — 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 B.KEMAL PASHA

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WEDNESDAY, THE 5TH DAY OF OCTOBER 2016/13TH ASWINA, 1938

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CRL.A.No. 145 of 2009 ( )

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SC 1291/2005 of ADDL. DISTRICT COURT (ADHOC), KOLLAM CP 88/2004 of JUDICIAL FIRST CLASS MAGISTRATE COURT, SASTHAMCOTTA

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APPELLANT(S)/ACCUSED :

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NEELAMBARAN, S/O.BHASKARAN, SUBI BHAVANAM, EDAKKADU MURI, PORUVAZHI VILLAGE, KUNNATHOOR, KOLLAM.

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BY ADV. SRI.S.SANTHOSH KUMAR

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RESPONDENT(S)/COMPLAINANT :

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EXCISE INSPECTOR, SASTHAMCOTTA EXCISE RANGE, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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................................................................ Crl. Appeal No. 145 of 2009

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............................................................... Dated this the 5^th day of October, 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.1291/05 of the Additional Sessions Court(Adhoc-I), Kollam, 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 simple imprisonment for three more months.

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The prosecution case is that on 24.11.2002 at 9.45 a.m., the accused was found transporting 5 litres of arrack near the Duriyodhana temple, Peruviruthi Malanad, Edakkadu muri, Poruvazhy Village, in contravention of the provisions of the Abkari Act.

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The offence was detected by PW4, Preventive Officer of Excise, Sasthamcotta. He seized the contraband through Ext.P1 mahazar. A sample of 200 ml was drawn. He

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Crl. Appeal No. 145 of 2009

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-: 2 :-

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placed the accused under arrest through Ext.P7 arrest memo. He produced the accused, the contraband, the sample and the records at the Excise Range Office, Sasthamcotta. PW3, who was the Excise Inspector attached to the Excise Circle Office, Kunnathur was allegedly in additional charge of the Excise Inspector, Sasthamcotta. He registered Ext.P2 crime and occurrence report. The contraband and the sample were produced before the learned Magistrate through Ext.P3 property list on 24.11.2002 itself. Forwarding note was furnished, the copy of which is Ext.P5. PW5 Excise Inspector, Sasthamcotta filed the final report on getting Ext.P8 certificate of chemical analysis which shows that the sample contained 37.51% by volume of ethyl alcohol.

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On the side of the prosecution, PWs.1 to 5 were examined, Exts.P1 to P8 were marked and MO1 was identified. No defence evidence was adduced. The court below found the accused guilty of the offence punishable

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Crl. Appeal No. 145 of 2009

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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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the learned Public Prosecutor.

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The learned counsel for the appellant has argued that the conviction and sentence passed by the court below are not legally sustainable in view of the fact that the crime and occurrence report in this case was registered by an officer who was not competent or authorised to do it. Over and above it, there is inordinate delay in the production of the sample before court.

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According to PW3, he was in additional charge of the Excise Inspector of Sasthamcotta. At the same time, no document has been produced to show that he was appointed as the Excise Inspector of Sasthamcotta. The fact that additional charge has been given to an Excise Officer in respect of another Excise Range will not confer any right on such officer to act as an Abkari Officer of such

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Crl. Appeal No. 145 of 2009

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an Excise Range. As per notification S.R.O.234/67, all officers of Excise Department, not below the rank of Excise Inspectors, are appointed as Abkari officers to perform the acts and duties mentioned under Sections 40 to 53 of the Abkari Act, within the areas for which they are appointed. Admittedly, PW3 was not appointed as an Excise Inspector for the Sasthamcotta Excise Range. Therefore, he was not competent or authorised to register Ext.P2 crime and occurrence report.

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Apart from the above, it seems that the learned Magistrate had directed PW3 to produce the property before court on 25.11.2002. It seems that PW3 has violated the said order and had chosen to produce the properties before court on 28.11.2002 only. The same is evident from Ext.P3 property list. The endorsements in Ext.P3 property list clearly show that the properties were produced before court on 28.11.2002 only. There is inordinate delay in the production of the sample before court. Therefore, it is not at

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Crl. Appeal No. 145 of 2009 -: 5 :-

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all safe to rely on Ext.P8 certificate of chemical analysis to enter on a conviction. Matters being so, the conviction and sentence passed by the court below are not legally sustainable and the same are liable to be set aside and I do so.

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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.

Neelambaran v. Excise Inspector

Case brief

What is this about?

What did the court decide?

Neelambaran v. Excise Inspector

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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