Allowed

Rajan v. State of Kerala

Kerala HC22 Aug 2016CRL.A/323/2009

Case brief

AI extract

What is this about?

The Court examined a criminal appeal challenging the conviction under the Abkari Act. It held that the crime registration by the Investigating Officer was illegal as he lacked the requisite rank under notification SRO No.234/67 and no sample was drawn in the accused's presence. Consequently, the appeal was allowed, and the accused was acquitted.

What did the court decide?

The conviction and sentence of the appellant are set aside, and the appellant is acquitted.

Rajan Vs State of Kerala — 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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MONDAY, THE 22ND DAY OF AUGUST 2016/31ST SRAVANA, 1938

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CRL.A.No. 323 of 2009 (A)

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SC 690/2002 OF ADDITIONAL SESSIONS COURT,FAST TRACK COURT, (ADHOC)-IV, THIRUVANANTHAPURAM, DATED 28-01-2009

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APPELLANT(S)/ACCUSED:

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RAJAN, MOONGAD ROADARIKATHU VEEDU, VILAPPIL VILLAGE, NEYYATINKARA.

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BY ADVS.SRI.M.R.SARIN SRI.M.R.SASITH

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT.MAYA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

B. KEMAL PASHA, J

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Crl.Appeal No.323 of 2009 =================

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Dated this the 22^nd day of August, 2016

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J U D G M E N T

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The appellant is the accused in Sessions Case No.690 of 2002 of the Additional Sessions Court

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(Adhoc-IV), Thiruvananthapuram, who stands convicted under Section 8(1) and (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of `1,00,000/-, in default to undergo rigorous imprisonment for three more months.

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The prosecution case is that on 05.07.1999

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the appellant was found transporting of 2 litres of arrack in a 2½ litres capacity can at a placed called Mukkampalamoodu junction in Thachottukavu - Anthiyoorkonam road, in contravention of the provisions of the Abkari Act.

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PW-4, Preventive Officer, has detected the

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Crl.A.No.323 of 2009 2

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offence. He seized the contraband through Exhibit-P1 mahazar and placed the accused under arrest through Exhibit-P2 arrest memo. He registered Exhibit-P4 crime and occurrence report. He produced the contraband before court through Exhibit-P5 property list on 06.07.1999.

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The matter was investigated and the complaint was filed on getting Exhibit-P7 certificate of chemical analysis.

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On the side of the prosecution, PW-1 to PW-

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5 were examined, Exhibits-P1 to P7 were marked, and MO-1 was identified. No defence evidence was adduced. The court below found the accused guilty of the offence punishable under Section 8(1) and (2) of

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the Abkari Act, convicted him thereunder and sentenced him as aforesaid.

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Heard the learned counsel for the appellant

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and the learned Public Prosecutor.

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The learned counsel for the appellant has

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Crl.A.No.323 of 2009 3

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argued that there is gross illegality in the registration of the crime in this case and also in the investigation conducted by PW-4, and that PW-4 was not empowered or authorised to register the crime or to investigate the same.

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PW-4 was the Preventive Officer, who detected the offence. According to him, he seized the contraband through Exhibit-P1 mahazar on 05.07.1999. He was the Preventive Officer attached

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to the Kattakkada Excise Range. He placed the accused under arrest through Exhibit-P2 arrest memo. He registered the crime through Exhibit-P4 crime and occurrence report. He produced the contraband before the court. Further he filed the forwarding note.

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PW-4 was not authorised to register the crime in this case in view of the notification SRO No.234/67. As per the said notification, all officers of

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the Excise Department, not below the rank of Excise Inspectors, were authorised to perform the acts and

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Crl.A.No.323 of 2009 4

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duties under Sections 40 to 53 of the Abkari Act, within the area for which they were appointed. Admittedly, PW-4 was the Preventive Officer of Excise. On going through Exhibit-P4 crime and occurrence report, it seems that PW-4 registered the crime and occurrence report 'for Excise Inspector'. The prosecution has not produced any documents to show that PW-4 was appointed as Excise Inspector for the Kattakkada Excise Range as on the date on which the crime was registered. Matters being so, the registration of the crime itself is illegal.

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Apart from the above illegality, there is another gross illegality in the case when PW-4 has failed to draw any sample from the contraband in the presence of the accused. Instead of drawing the sample, the contraband as such was allegedly produced before court on the next day. PW-5, Property Clerk of the Judicial First Class Magistrate’s Court, Kattakkada had allegedly drawn the sample from the

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Crl.A.No.323 of 2009 5

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contraband as per the orders of the learned Magistrate. He has not deposed as to the date on which the sample was allegedly drawn. Any orders from the learned Magistrate has also not been produced. Apart from that, the sample ought to have been drawn from the contraband in the presence of the accused at the spot. From all the above, it has come out that there is gross illegality in the registration of the crime and further that no sample was drawn from the contraband at the spot in the presence of the accused. Therefore, the conviction and sentence passed by the court below are liable to be set aside.

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

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Sd/B. KEMAL PASHA, JUDGE.

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DSV/23/8/16

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// True Copy //

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P.A. To Judge

Rajan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Rajan v. State of Kerala

Case brief

What is this about?

What did the court decide?

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