Allowed

Mathew George v. State of Kerala

Kerala HC26 Sept 2016CRL.A/186/2009

Case brief

AI extract

What is this about?

This is a criminal appeal against conviction under the Abkari Act. The High Court set aside the conviction finding a glaring illegality where the Additional Sub Inspector filing the First Information Report and Final Report was not shown to be duly appointed as an Abkari Officer under SRO No.321/96.

What did the court decide?

The criminal appeal was allowed, conviction and sentence were set aside, and the appellant was acquitted.

Mathew George 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 B.KEMAL PASHA

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MONDAY, THE 26TH DAY OF SEPTEMBER 2016/4TH ASWINA, 1938

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CRL.A.No. 186 of 2009 ( )

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SC 181/2006 of IV ADDL.SESSIONS COURT (ADHOC)-II, THODUPUZHA DATED 27-12-2008

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CP 81/2005 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT, KATTAPPANA

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APPELLANT/ACCUSED NO.1::

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MATHEW GEORGE, S/O.JOSEPH,

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THATTAMPARAMBIL HOUSE, AYYAPPANCOIL VILLAGE, KAITHOTTY KARA.

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BY ADV. SRI.D.PEETHAMBARAN

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RESPONDENT/COMPLAINANT::

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STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KATTAPPANA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SR. PUBLIC PROSECUTOR SRI.C.S.HRITHWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

DSV/28/9/16

B. KEMAL PASHA, J

=================

Crl.Appeal No.186 of 2009 =================

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Dated this the 26^th day of September, 2016

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J U D G M E N T

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The appellant is the 1^st accused in S.C.No.181

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of 2006 of the IV Additional Sessions Court (Adhoc-II), Thodupuzha, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for three years and to pay a fine of `1,00,000/-, in default, to undergo simple imprisonment for six months. The 2^nd accused in the case was acquitted.

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The prosecution case is that on 07.09.2002 at 11.15 a.m., the appellant was found in possession

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of 3½ litres of arrack in a 5 litre can and the 2^nd accused was found in possession of a plastic bottle and a glass tumbler, near the Malanadu Coffee Farmers Vanitha Sangham at Kalthotty, in contravention of the provisions of the Abkari Act.

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Crl.A.No.186 of 2009 2

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PW-3, the Additional Sub Inspector of Police, Kattappana, detected the offence. He placed both the accused under arrest through Exhibit-P2 series arrest memos. The contraband was seized through ExhibitP1 seizure mahazar. Two samples of 180 ml each were drawn from the contraband. He registered the crime through Exhibit-P3 First Information Report on the basis of Exhibit-P3(a) suo motu report. The contraband and samples were produced before court through Exhibit-P4 property list. A forwarding note was furnished, the copy of which is Exhibit-P5. He conducted the investigation and filed the Final Report on getting Exhibit-P7 certificate of chemical analysis.

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On the side of the prosecution, PW1 to PW4

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were examined, Exhibits-P1 to P7 were marked and MO1 and MO2 were identified. On the side of the accused, DW1 was examined. The court below found the appellant guilty of the offence punishable under

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Crl.A.No.186 of 2009 3

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Section 8(2) of the Abkari Act, convicted him

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thereunder and sentenced him as aforesaid.

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Heard the learned Senior Public Prosecutor.

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On a perusal of the records and evidence in

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this case, this Court could notice a glaring illegality in the procedure adopted by PW-3, in registering the crime as well as filing the Final Report.

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As per notification SRO No.321/96, the Government has appointed 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, as Abkari Officers, for the purpose of Sections 31, 32, 33, 34, 35, 38, 40 to 53 and 59 of the Abkari 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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Here in this particular case, PW3 was the Additional Sub Inspector of Police, Kattappana. The

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Crl.A.No.186 of 2009 4

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prosecution has failed to prove that he was the Sub Inspector of Police, Kattappana, who was in charge of law and order. Matters being so, Exhibit-P3 First Information Report and the Final Report in this case have become illegal. The said illegality cannot be cured. 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.

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

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Sd/-

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B. KEMAL PASHA, JUDGE.

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DSV/26/9/16

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// True Copy //

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P.A. To Judge

Mathew George v. State of Kerala

Case brief

What is this about?

What did the court decide?

Mathew George v. State of Kerala

Case brief

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What did the court decide?

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