An appeal challenging conviction under the Abkari Act for unlawful possession of alcohol. The Kerala High Court acquitted the appellant, holding that the Assistant Excise Inspector who investigated was not legally appointed to register the crime report.
Conviction and sentence set aside; accused acquitted; amounts deposited as fine to be returned.
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 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938
CRL.A.No. 424 of 2009 ( )
AGAINST THE JUDGMENT IN SC 157/2008 OF THE ADDITIONAL SESSIONS COURT/SPECIAL COURT (NDPS ACT CASES), THODUPUZHA DATED 24-02-2009
APPELLANT(S)/ACCUSED:
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REJI, S/O.PAPPAN, KURUMBANACKAL URUMBALLOO KARA, IDUKKI VILLAGE.
BY ADV. SRI.S.RAJEEV
RESPONDENT(S)/STATE:
STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.22 OF 2006 OF EXCISE, RANGE, IDUKKI).
R BY PUBLIC PROSECUTOR SRI. C.S.HRITWIK
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AD
B.KEMAL PASHA, J.
Crl.Appeal No.424 of 2009
Dated this the 27th day of October, 2016
JUDGMENT
Appellant is the accused in Sessions Case No.157/2008 of the Additional Sessions Court/Special Court for NDPS Act Cases, Thodupuzha, who stands convicted under Section 55(a) and 55(g) of the Abkari Act, and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.1,00,000/-, in default, to undergo rigorous imprisonment for six more months.
the house of the accused, temporary shed and also the premises wherein the said buildings are situated, on 26.11.2006, 25 litres of arrack and 900 litres of wash were recovered and seized. It was found that the accused was keeping in his possession the aforesaid contraband, in contravention of the Provisions of the Abkari Act.
Assistant Excise Inspector, Idukki Excise Range. He seized the contraband through Ext.P1 mahazar and placed the accused
Crl.Appeal No.424 of 2009 2
under arrest through Ext.P4 arrest memo. Samples were drawn from the contraband. On reaching Excise Office with the accused, the contraband, samples and records, he registered Ext.P6 crime and occurrence report. The properties were produced before court through Ext.P7 property list. Forwarding note was furnished, the copy of which is Ext.P8. PW5 Excise Inspector, Idukki conducted the investigation, and filed the final report on getting Ext.P10 certificate of chemical analysis.
argued that the foundation of the case itself has become illegal
Crl.Appeal No.424 of 2009
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when PW3 has chosen to register the crime and occurrence report in this case.
Idukki. He has not even a case that he was appointed as the
Excise Inspector, Idukki as on the date of incident. There is not even a case that at least he was in additional charge of the Excise Inspector. 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 areas for which they were appointed. Admittedly, PW3 was not appointed as Excise Inspector, Idukki. Therefore, PW3 was not competent or authorised to register the crime and occurrence report in this case.
and sentence passed by the court below are liable to be set aside.
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Crl.Appeal No.424 of 2009
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. The amount, if any, deposited by
the appellant as part of the fine amount at the time when the
sentence was suspended, shall be returned to the appellant.
Sd/-
B.KEMAL PASHA JUDGE
//TRUE COPY//
P.A. TO JUDGE
AD/27/10/16
2 issues framed by the court
Whether Assistant Excise Inspector PW3 was competent to register the crime report as he was not appointed as Excise Inspector on the date of incident.
Whether the conviction and sentence must be set aside due to the illegal registration of the crime report by an unauthorised officer.
2 provisions across 2 enactments
Reji
State of Kerala
B.Kemal Pasha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
