Allowed

Janaki v. State of Kerala

Kerala HC21 Mar 2016CRL.A/1565/2004

Case brief

AI extract

What is this about?

Appeal against conviction for theft of illicit arrack. High Court held that detection by an unauthorized Assistant Sub-Inspector was illegal under the Abkari Act, house search provisions were not complied with, and identity of the accused was not properly established. Conviction set aside and accused acquitted.

What did the court decide?

Conviction and sentence by the Sessions Court set aside; appellant acquitted and set at liberty.

Janaki Vs State of Kerala — Cheque Dishonour | 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 P.D.RAJAN

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MONDAY, THE 21ST DAY OF MARCH 2016/1ST CHAITHRA, 1938

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CRL.A.No. 1565 of 2004 ( )

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AGAINST THE JUDGMENT IN SC 171/2002 of ADDL.SESSIONS COURT (ADHOC), KASARAGOD DATED 27-07-2004

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APPELLANT/ACCUSED:

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JANAKI, AGED 44 YEARS,

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W/O.MALINKA NAIK, ADAKAM,, OLARA KALLAR VILLAGE.

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BY ADV. SRI.T.K.VIPINDAS

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY

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PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, REPRESENTING THE S.H.O.,, HOSDURG POLICE STATION.

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BY PP SRI N SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-032016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.D.RAJAN, J

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......................................... Crl.A.No.1565 of 2004 ....................................... Dated 21^st March, 2016

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This appeal is preferred by the accused against the judgment in S.C.171 of 2002 of additional Sessions Judge, Adhoc I Kasargod for offence punishable under Section 55(a) of the Abkari Act. The charge against the appellant is that on 7.8.2001 at 11.45 am, appellant was found in possession of 7 ½ litres of arrack and 60 litres of wash in his house No.KP 1/143(PP V/330) of Kallloor Village by the Assistant S.I of Police, Rajapuram. Accused was arrested and contraband articles were seized after preparing a mahazar. Reaching at the police station, he registered a crime. After completing investigation, S.I of Police, Rajapuram laid charge before Judicial First Class Magistrate I, Hosdurg. Subsequently, it was committed to Sessions Court. From there, it was made over to additional Sessions Judge, Adhoc I.

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During trial, prosecution examined PW1 to PW6 and marked Ext.P1 to P8 as documentary evidence. MO1

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CRA 1565/204 2

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to MO3 were admitted as material objects. The

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incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. Learned additional Sessions Judge convicted the accused under Seciton 55(a) and (g) of the Abkari Act and sentenced to rigorous imprisonment for three months each and fine of Rs.1 lakh in default rigorous imprisonment for three months each. Being aggrieved by that, he preferred this appeal.

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Learned counsel appearing for the appellant contended that the offence was detected by a non empowered officer and a conviction is not maintainable in law on the basis of such detection. No evidence has been adduced by the prosecution to prove that appellant is in possession of the property.

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According to Section 3(d) of the Abkari Act, Abkari officer means the Commissioner of excise or any officer or other person lawfully appointed or invested with the powers under Section 4 or 5. Section 4(d) of the Abkari Act says, the government may appoint officer to take

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CRA 1565/204

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action under Section 40 to 53. According to Section 4(e), government may appoint any subordinate officers of such class and with such discretion and powers and duties under this Act as State Government may think fit. Government is also empowered to make rules from time to time prescribing powers and duties to be exercised and performed by abkari officers of several class. However government issued SRO No.321/1996 dated 29.3.1996 empowering SI of Police in charge of law and order working in the general executive branch of the police department within their jurisdiction as empowered officers.

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The notification issued under Section 4 reads as

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follows:-

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“ S.R.O.No.321/96. - In exercise of powers conferred by section 4 of the Abkari Act, I of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be

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Abkari Officers under their respective Jurisdiction for the purpose of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the sections aforesaid.

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This notification shall come into force with immediate effect.”

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Explanatory Note.- The Government have decided to abolish all arrack shops in the State of Kerala from 1-4-1996. As per G.O. (MS) No.26/96.TD dated 14-2-1996, Government have announced the new Excise Policy in the year 1996-97. In order to implement the Government policy effectively the Government have decided to empower the Police Officers to register cases against violation of Excise Laws as per G.O.(MS) No.32/96/TD dated 26-2-1996. In the high level meeting of the Officers of the Excise Police and Revenue Departments convened by the Honourable Chief Minister of Kerala on 17-3-1996, it has been decided to invest the Police Officers, and Revenue Officers with power of Abkari Officers to register, investigate and prosecute all offences coming under the Abkari Act. In order to carry out the above decision a notification under Section 4 of

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the Abkari Act 1 ot 1077 has to be issued declaring all Police Officers of and above the rank of Sub Inspector of Police in charge of law and and working in the General Executive branch of Police Department and all Revenue Officers of and above the rank of Deputy Collectors to exercise all the powers and to discharge all the duties mentioned in the sections specified in the notification.”

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This court in Subash V. State of Kerala (2008(2) KLT 1047) held that a Magistrate cannot take cognizance of the offence under the Act on the basis of a report filed by Assistant Sub Inspector of Police, who is not an abkari officer under the Act.

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The detecting officer in this case is the Assistant Sub Inspector, Rajapuram. His evidence shows that on 7.8.2001, while he was working as Assistant S.I, Rajapuram police station, he conducted patrol duty within his jurisdiction. When he reached at Kalloor, he got information that appellant was manufacturing illicit arrack in her house. Immediately, he proceeded to the

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place of occurrence after preparing a search

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memorandum. On seeing the police party, accused ran away. In the presence of independent witness, he conducted a search. He detected MO1 and MO2 inside the room. He also detected MO3 series from the toilet. The contraband articles were seized after preparing Ext.P1 mahazar. He took sample from MO1 to MO3 and sealed it at the place of occurrence. The wash found in MO3 was destroyed after taking a sample of 600 ml. He also affixed label in MO1 to MO3. Independent witnesses present there attested mahazar and put their signature in MO1 to MO3. Reaching at the police station, he registered

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a crime. Ext.P2 is the F.I.R. A perusal of cross examination shows that PW1 has no previous acquaintance with the accused. Even though he deposed that he prepared a search memorandum, but it was not produced in the trial court. Therefore I am of the opinion that the mandatory provision for conducting a house search was not complied in this case.

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PW2 is the attestor of Ext.P1 seizure search list who admitted his signature in Ext.P1. But he contended

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CRA 1565/204

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that he did not see the seizure of MO1 to MO3 from the house of appellant. PW3 who attested Ext.P3 mahazar did not support the prosecution case. PW4, Village Assistant prepared Ext.P4 site plan. Even though Ext.P4 was prepared by PW4, no evidence has been produced by the prosecution to show the possession and ownership of the house of the appellant. PW5 Secretary Kalloor Panchayat deposed that the house No.1/143 was owned by the appellant from 01.10.2000 to 06.09.2001. Before that, the house situate within Panathady Panchayat and its door number was PP V/330.

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S.I of Police, Rajapuram was examined as PW7, who deposed that he visited the place of occurrence and prepared Ext.P3 mahazar. He also prepared Ext.P6 property list. MO1 to MO3 were produced before court. Till then it was in his custody. The sample was forwarded to the Chemical Examiner's lab through court and Ext.P7 is the forwarding note. The sample was examined in the Chemical Examiner's Lab and obtained Ext.P8 certificate. Even though PW6 conducted

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investigation, no witnesses were examined to prove the identity of the accused. When there is no proper identity, it is presumed that on the basis of Ext.P5 certificate, a conviction is not maintainable.

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Appellant examined DW1 and contended that he is not residing in that house. Even though such a contention was raised by the appellant, no documentary evidence has been adduced by him to prove that point also. A Division Bench of this court in Subash's case supra held that while dealing with abkari offence, special provision made in the Abkari Act should be strictly followed. When there is no special authorisation to Assistant S.I of Police to act as Abkari Officer, all the proceedings taken by him with the detection of the offence is illegal and conviction is not possible on the basis of such illegal procedure. Hence I am of the opinion that the report of PW7 was on the basis of detection by non abkari officer and the cognizance taken by the Magistrate is illegal.

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In the result, the conviction and sentence passed by

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CRA 1565/204

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the additional Sessions Judge, Adhoc I under Section 55 (a) and (g) of the Abkari Act is set aside and accused is

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acquitted and set at liberty. Appeal is allowed.

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P.D.RAJAN, JUDGE

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lgk

Janaki v. State of Kerala

Case brief

What is this about?

What did the court decide?

Janaki v. State of Kerala

Case brief

What is this about?

What did the court decide?

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