High Court Kerala allowed the criminal appeal and acquitted the appellant. The court set aside the conviction and sentence for brewing arrack, ruling that the prosecution evidence was insufficient due to defective identification and lack of corroboration.
Conviction and sentence set aside; appellant acquitted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 4TH DAY OF AUGUST 2016/13TH SRAVANA, 1938
CRL.A.No. 411 of 2009 ( )
-------------------------SC.NO. 581/2007 OF ADDITIONAL SESSIONS COURT- SPECIAL COURT (NDPS ACT CASES), THODUPUZHA
APPELLANT/ACCUSED:
RAVI, S/O.RAGHAVAN, THANNIKKOTTUKUDI (H), DEVIYAR COLONY, MANNAMKANDOM VILLAGE.
BY ADVS.SRI.TITUS MANI
SRI.S.SURAJ (PALATHANATHU) SRI.T.G.RAGESH
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SMT. MAYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
B. KEMAL PASHA, J.
Crl. Appeal No.411 of 2009
Dated this the 4th day of August, 2016
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~
Appellant is the accused in SC No.581/2007 of
the Additional Sessions Court / Special Court for NDPS Act Cases, Thodupuzha, who stands convicted for the offence under Section 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of ₹1 lakh, in default to undergo rigorous imprisonment for six months.
11.30 a.m., the accused was found keeping at his house 40 litres of wash and utensils for brewing arrack.
Crl.A.411/2009
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getting prior information that the accused was keeping wash for brewing arrack at his house, he along with the excise party went to the house. On seeing the excise party, the accused got out of the house and ran away from there. On a search of the house, 40 litres of wash could be seized. A sample of 750 ml. was drawn from the wash. The contraband and the sample were seized through Ext.P1 mahazar. PW3 registered Ext.P3 crime and occurrence report. He produced the contraband before court through Ext.P7 property list and furnished the forwarding note, the copy of which is Ext.P6. PW4 Excise Inspector conducted the investigation and filed the complaint on getting Ext.P9 certificate of chemical analysis.
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thereunder and sentenced him as aforesaid.
attached to the Adimali Excise Range. As on the date of occurrence, the notification then prevailing was Notification SRO.234/1967. As per Notification SRO No.234/1967, all officers of the Excise Department, not below the rank of Excise Inspectors, were appointed as Abkari Officers to perform the acts and duties mentioned in Sections 40 to 53 of the Abkari Act, within the areas for which they were
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appointed. Here, PW2 was only a Preventive Officer, who was not authorised as per the said notification to perform any of the acts and duties mentioned above. Matters being so, he had no power or authority to register the crime through Ext.P3 crime and occurrence report. The said gross illegality cuts the route of the prosecution case.
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mahazar.
examined by the prosecution to prove the occurrence, they had turned hostile to the prosecution and did not support the prosecution case. The only evidence regarding the identity of the accused is that of PW2. The prosecution has not cared to examine any of the other excise personnel who were allegedly present along with PW2, to corroborate the versions of PW2. In the absence of the rent deed and in the absence of the evidence from the house owner, the prosecution ought to have examined at least one of the excise personnel, who were allegedly present along with PW2, as a witness to corroborate the versions of PW2. From all the above, this Court is satisfied that there is no sufficient evidence in the case to convict and sentence the accused for the offence under Section 55(g) of the Abkari Act. Therefore, the conviction and sentence passed by the court below are liable to be set aside.
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In the result, this Criminal Appeal is allowed and the conviction and sentence passed by the court below as against the appellant are set aside. The appellant is acquitted.
Sd/- (B.KEMAL PASHA, JUDGE)
aks/04/08
// True Copy //
PA to Judge
3 issues framed by the court
Whether the conviction under Section 55(g) of the Abkari Act is unsustainable due to lack of proper identification of the accused and insufficient corroboration of evidence.
Whether a Preventive Officer is authorized to register a crime report under the prevailing notification for excise duties.
Whether the absence of corroborative evidence from the house owner and other excise personnel necessitates setting aside the conviction and sentence.
2 provisions across 2 enactments
Ravi
State of Kerala
B. Kemal Pasha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
