Allowed

Sivan Pillai v. State of Kerala and Another

Kerala HC27 Oct 2016CRL.A/348/2009

Case brief

AI extract

What is this about?

High Court criminal appeal against conviction under the Abkari Act. The Single Bench held that the Assistant Excise Inspector lacked authority to register the crime report as he was not appointed as an Excise Inspector on that day. The appeal was allowed, conviction set aside, and the accused acquitted.

What did the court decide?

Conviction and sentence set aside; accused acquitted.

Sivan Pillai Vs State of Kerala and Another — 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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THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938

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CRL.A.No. 348 of 2009 ( )

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AGAINST THE ORDER IN SC 729/2006 of ADDL. DIST. COURT (ADHOC)III, PATHANAMTHITTA DATED 14-01-2009

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APPELLANT/ACCUSED:

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SIVAN PILLAI, S/O.PERUMAL PILLAI, NELLEVEETTIL PUTHEN VEEDU, THAZHAM MURI, MALAYALAPPUZHA VILLAGE

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BY ADV. SRI.VINOY VARGHESE KALLUMMOOTTILL

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RESPONDENT(S)/COMPLAINANT & STATE:

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1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2. EXCISE INSPECTORS, KONNI EXCISE RANGE.

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R BY PUBLIC PROSECUTOR SRI. C.S.HRITWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.KEMAL PASHA, J.

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Crl.Appeal No.348 of 2009

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Dated this the 27^th day of October, 2016

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JUDGMENT

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Appellant is the accused in Sessions Case No.729/2006

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of the Additional Sessions Court-Adhoc-III, Pathanamthitta, who

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stands convicted under Section 8(2) of the Abkari Act, and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-, in default, to undergo rigorous imprisonment for six more months.

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The prosecution case is that on 12.08.2003 at 12.30 p.m., the accused is found transporting 9 litres of arrack in a 10

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litres capacity jerry can, through the lane leading to Kurinjippuzha from Malayalappuzha-Puthukkulam road, in contravention of the Provisions of the Abkari Act.

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PW4 Excise Inspector of the Special Squad detected

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the offence. He seized the contraband through Ext.P2 mahazar

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and placed the accused under arrest through Ext.P3 arrest memo. A sample of 200 ml was drawn from the contraband. He

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Crl.Appeal No.348 of 2009 2

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produced the accused along with the contraband, sample and records at the Excise Office, Konni. PW6 Assistant Excise Inspector, Konni, who was allegedly in additional charge of the Excise Inspector, registered Ext.P6 crime and occurrence report. He produced the property before court through Ext.P8 property list. Forwarding note was also furnished. On getting Ext.P10 certificate of chemical analysis, PW7 Excise Inspector, Konni filed final report.

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On the side of the prosecution, PWs 1 to 7 were examined, Ext.P1 to Ext.P10 were marked and MO1 was identified. On the side of the accused, DW1 was examined. The court below found the appellant guilty of the offence punishable under Section 8(2) of the Abkari Act, convicted him thereunder, and sentenced him as aforesaid.

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Heard the learned counsel for the appellant and the learned Senior Public Prosecutor.

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The learned counsel for the appellant has argued that the entire case has become illegal on account of the illegality committed by PW6 in registering Ext.P6 crime and occurrence

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Crl.Appeal No.348 of 2009 3

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report, since PW6 was not competent or authorised to perform such an acts.

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Admittedly, PW6 was the Assistant Excise Inspector,

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Konni. According to PW6, he had additional charge of the Excise

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Inspector on that particular day. At the same time, there is nothing to show that PW6 was appointed as Excise Inspector of

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Konni Excise Range on that particular day.

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As per the notification in SRO No.234/1967, all Officers of Excise not below the rank of Excise Inspectors were appointed as Abkari Officer to perform the acts and duties contemplated under Sections 40 to 53 of the Abkari Act, within the area for which they were appointed. Even PW6 has no case that he was appointed as Excise Inspector of Konni Excise Range on that particular day. The prosecution has not produced any documents to prove that PW6 was appointed as Excise Inspector of Konni Excise Range on that particular day. Matters being so, PW6 was not competent or authorised to perform any of the acts and duties contemplated under Sections 40 to 53 of the Abkari Act. The registration of Ext.P6 crime and occurrence report by

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Crl.Appeal No.348 of 2009

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PW6 is illegal and it has rendered all further proceedings in the case illegal. Matters being so, 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. The conviction and sentence passed by the court below are set aside and the accused is acquitted.

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Sd/- B.KEMAL PASHA JUDGE

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AD/28/10/16

Sivan Pillai v. State of Kerala and Another

Case brief

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Sivan Pillai v. State of Kerala and Another

Case brief

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