The High Court acquitted the appellant in an appeal against conviction for possession of arrack, holding that the seizure was illegal as it was conducted by an Assistant S.I., who is not an empowered Abkari Officer under the Kerala Government notification.
Conviction and sentence set aside; accused acquitted and set at liberty.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
THURSDAY, THE 25TH DAY OF FEBRUARY 2016/6TH PHALGUNA, 1937
CRL.A.No. 1922 of 2005 ( )
AGAINST THE JUDGMENT IN SC 417/2000 of ADDL. SESSIONS COURT (ADHOC)II, TRIVANDRUM
APPELLANT/ACCUSED.:
SUSEELA, D/O.ROSSILE, THOTTARIKATTU VEEDU, NEAR ANAPPARA MARKET, KOTTAKKAKOM MURI VITHURA VILLAGE, NEDUMANGADU.
BY ADV. SRI.G.SUDHEER
RESPONDENT/COMPLAINANT.:
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
By PP SRI N SURESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-022016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.D.RAJAN, J
......................................... Crl.A. 1922 of 2005 ....................................... Dated 25th February, 2016
JUDGMENT
This appeal is preferred against the conviction and sentence in S.C.478 of 2000 of Additional Sessions Judge Fast Track II, Thiruvananthapuram under Section 55(a) of the Abkari Act. The charge against the appellant is that on 25.5.1999 at 12.30 pm, Assistant S.I, Vithura was conducting patrol duty and they reached near Anappara market, at that time, accused was found standing in the courtyard of his house near Anappara market with MO1 kannas. He intercepted her and inspected the kannas in which he detected 5 litres of arrack. She was arrested with help of woman police constable and the contraband article was taken into custody after preparing a mahazar. Reaching at the police station, he registered a crime. After completing investigation, S.I of Police, Vithura laid charge before Judicial First Class Magistrate II, Nedumangad from there the case was committed to Sessions Court, Thiruvananthapuram. Subsequently, it was made over to Additional Sessions Judge Fast Track II, Thiruvananthapuram.
Cra 1922/2005 2
marked Ext.P1 to Ext.P7. MO1 was admitted as material
object. The incriminating circumstances brought out in evidence were denied by the accused while questioning her. She did not adduce any defence evidence. Ext.D1 was marked during cross examination of PW3. Learned Additional Sessions Judge convicted the accused under Section 58(a) of the Abkari Act and sentenced to imprisonment for two years and fine of Rs.1,00,000/-. Being aggrieved by that, she preferred this appeal.
“ 9. Yet another point to be considered is regarding the contention of the learned counsel appearing for the appellant that PW3 being an Assistant Sub Inspector of Police during the relevant time was not an authorized officer to detect or investigate the offence under the provisions of the Abkari Act. As per S.4 of the Abkari Act the Government of Kerala
Cra 1922/2005
3
is empowered to authorize an officer of the State to detect or investigate an offence contemplated under the provisions of the Abkari Act. Sub-s.(2) of S.3 of the Abkari Act defines an Abkari Officer as follows:
“Abkari Officer - 'Abkari Officer' means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Ss. 4 or 5”.
“ In exercise of the powers conferred by S.4 of the Abkari Act, I of 177 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 Abkari Officers under their respective jurisdiction for the purposes of
Ss.31,32,33,34,35,38,40,41,42,43,44,45,46,47,
4
Cra 1922/2005
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”.
Cra 1922/2005
5
police constable admitted arrest of the accused. She deposed that MO1 was recovered and the articles were taken into custody after describing in Ext.P1 mahazar. Even though PW3 and 4 were cross examined by the defence counsel, nothing has been brought out to discredit their testimony.
Cra 1922/2005
6
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 Abkari Officers under their respective jurisdiction for the purposes of Ss.31 to 35, 38 and 40 to 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 .
8 . The Assistant Sub Inspector of Police is not mentioned in the above notification. Therefore a conviction is not maintainable on the basis of the evidence collected by a non empowered officer. Trial court failed to appreciate that ground.
In the result, the conviction and sentence passed by the Additional Sessions Judge Adhoc II under Section 55(a) of the Abkari Act is set aside. Accused is acquitted and set at liberty. Appeal is allowed.
P.D.RAJAN, JUDGE
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2 issues framed by the court
Whether the conviction is maintainable when the offence was detected by an Assistant Sub-Inspector who is not an Abkari Officer under G.O.(P) No.69/967TD.
Whether the violation of Section 4 of the Abkari Act regarding the detection of the offence vitiates the conviction.
Colour shows how this judgement treated each authority
Sabu V. State of KeralaRelied on¶24
Sabu V. State of Kerala (2007(4) KLT 169)
1 provisions across 1 enactments
Suseela
State of Kerala
P.D.Rajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
