Criminal Appeal allowed. High Court quashed conviction and sentence for possessing arrack. Conviction set aside due to failure to prepare search memorandum, lack of independent witness presence in search, and failure to prove ownership of property seized.
Conviction and sentence set aside; appellant set at liberty.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
FRIDAY, THE 22ND DAY OF JANUARY 2016/2ND MAGHA, 1937
CRL.A.No. 1750 of 2005 ( )
AGAINST THE JUDGMENT IN SC 120/2003 of ADDL.SESSIONS JUDGE FAST TRACK COURT NO.III (ADHOC), MANJERI DATED 09-09-2005
APPELLANT(S)/ACCUSED::
GEORGE,
SON OF KARIMARTHIL PUTHENVEETTIL JOSEPH KURUMBALANODE VILLAGE, PATHAR DESOM, NILAMBUR TALUK MALAPPURAM DISTRICT.
BY ADV. SRI.K.M.SATHYANATHA MENON
RESPONDENT(S)/COMPLAINANT/STATE::
1. EXCISE INSPECTOR, NILAMBUR RANGE, NILAMBUR, MALAPPURAM DISTRICT.
2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. N. SURESH.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
acd
P.D. RAJAN, J.
Crl.Appeal No.1750 of 2005
Dated this the 22nd day of January, 2016
JUDGMENT
This appeal is preferred against the conviction and
sentence in S.C.No.120/2003 of Addition Additional Sessions
Judge, Fast Track Court No.III (Adhoc), Manjeri u/s.55(a) (g) and 8(1) of the Abkari Act. The charge against the appellant is that on 26.7.2000 at 12.40 p.m. he was found in possession of 20
litres of arrack and 140 litres of wash in four other cans from the property of Chettimattel Joy, S/o. Joseph at Manjappara in Kurumbilangode Village. The Excise Inspector, Excise Range, Nilambur arrested the accused and seized the contraband
articles, thereafter, registered a crime and occurrence report. After completing investigation, Range Inspector, Nilambur laid charge before Judicial First Class Magistrate Court, Nilambur,
Crl.A. No.1750/2005 2
from there the case was committed to Sessions Court, Manjeri for trial.
marked Exts.P1 to P9. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He was also heard u/s.232 Cr.P.C. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the appellant u/s.55(g) and 8(2) of the Abkari Act and sentenced to rigorous imprisonment for one year and fine of 1 lakh in default simple imprisonment for three₹ months each u/s.55(g) and 8(2) of the Abkari Act. No separate punishment was imposed u/s.55(a) of the Abkari Act. Being aggrieved by that, he preferred this appeal.
Crl.A. No.1750/2005 3
information at a distance of 50 meters away from the place of occurrence. The property comprised of 40 acres. Therefore, the allegation that the nine Excise officials searched the
entire property within ten minutes is utter false and there is no possibility for registering such a case against the accused.
is no reason to interfere in the findings recorded by the Court below. All procedure formalities were properly complied with and therefore, there is no illegality in the sentence passed by
the trial Court.
searched the house, at that time, the accused was found in the
Crl.A. No.1750/2005 4
house and owner of the property was not found there. PW1 proceeded with the search and detected arrack in one can and wash in other four cans. The apparatus, implements and utensils for making arrack was also seized from the place of occurrence, which were marked as MOI to MOIII series. The contraband articles were seized after preparing a mahazar. He took 500 ml as sample in four bottles and sealed at the place of occurrence. Ext.P1 is the mahazar. Ext.P2 is the search list. Ext.P3 is the arrest memo. He affixed label in MOI series. PW1 and the accused signed in it. Reaching at Excise Range Office, he registered a crime. Ext.P4 is the crime and occurrence report. The seized articles were produced before Court from there it was forwarded to chemical examiner's lab. Ext.P6 is the property list. Ext.P5 is the copy of forwarding note. This witness was cross examined by the defence counsel. Procedures followed by PW1 was questioned. Even though PW1 stated that he prepared search
Crl.A. No.1750/2005 5
memorandum, no document was marked or produced in the trial Court to prove that before conducting search, he prepared a
search memorandum and thereafter proceeded to the place of occurrence for search. Nothing was stated in Ext.P1 whether independent witness was present there or they saw the search and seizure.
Range, who accompanied PW1, supported the search and seizure. But, in Ext.P1 the presence of independent witness
was not mentioned and they had not signed in Ext.P1. According to PW1, there are two accused, the owner and his
worker. The appellant is the worker of the other accused. Even though PW2 stated that independent witness were present, that evidence is inconsistent with the oral testimony
of PW1 and documentary evidence of Ext.P1.
but they have stated that they were not present at the time
Crl.A. No.1750/2005 6
of search and seizure. PW1 obtained their signature, while they were sitting in Manu's shop. PW5 obtained Ext.P7 chemical examination certificate and laid charge before Court. In cross examination, he admitted that he obtained certificate from the Village Officer and as per the Village records, the property was not surveyed. According to the oral evidence of PW5, it is clear that the ownership and possession of the property was not proved by the prosecution. As per the Survey of the Village Officer, 40 acres of property was surrounded by forest land and Chettimattel family is in possession of the property, but that document was not marked in evidence. Moreover, the Village Officer was not examined as a witness to prove this point. When a search is conducted in
a building or a house, it is the primary responsibility of the prosecution to show the possession or ownership of the house or the property.
Crl.A. No.1750/2005 7
officer not below the rank as specified by the Government or any police officer not below the rank of Sub Inspector or a Police Station Officer has reason to believe that an offence under the Abkari Act has been committed and that the delay occasioned by obtaining a search warrant under the preceding Section will prevent the execution thereof, he may after recording his reasons and the grounds of his belief at any time by day or night, enter and search any place and may seize anything found therein which he has reason to believed to be liable to confiscation under this Act. He may detain and search, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of any offence under this Act.
1979 SC 711] held that before proceeding to search a place, an
excise officer conducting search has to make a record of ground based on which he had reasonable belief that an
Crl.A. No.1750/2005 8
offence under the act was being committed. Interpreting Section 54 of the Mysore Excise Act, which corresponds to section 31 of the Kerala Abkari Act, Hon'ble Supreme Court, held that the violation of the provision rendered the search completely without jurisdiction and, as a logical corollary, vitiated the conviction. Here, the detecting officer has not prepared any search memorandum and he has not followed the procedure thereunder. Even though he seized certain articles, that itself cannot be formed for basis of a conviction under the Abkari Act. Moreover, the possession of the property from where the liquor was seized and the possession of the house from where arrack was manufactured were not proved in this case. In such circumstances, the appellant is entitled to get the benefit of doubt.
is not sufficient to convict him. The prosecution has a duty to prove the case beyond reasonable doubt. In the light of the
Crl.A. No.1750/2005 9
legal infirmity in connection with the search, seizure, possession and ownership of the property, the appellant is entitled to get the benefit of doubt.
In the result, the conviction and sentence passed by the learned Additional Sessions Judge, Manjeri u/s.55(a) (g) and 8
(1) (2) of the Abkari Act are set aside. The appellant is set at
liberty and this appeal is allowed.
P.D. RAJAN, JUDGE.
acd
Crl.A. No.1750/2005 10
3 issues framed by the court
Whether the conviction can be sustained when the detecting officer failed to prepare a search memorandum as required by Section 31 of the Abkari Act.
Whether the seizure of articles found at a property where ownership and possession were not proved is sufficient for conviction.
Whether the appeal against conviction under the Abkari Act should be allowed due to legal infirmities in search, seizure, proof of property, and independent witness presence.
Colour shows how this judgement treated each authority
K.L.Subbayya v. State of KeralaFollowed¶59
K.L.Subbayya v. State of Kerala [AIR 1979 SC 711] · Who else cites this
3 provisions across 3 enactments
GEORGE
STATE OF KERALA
P.D. RAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
