Allowed

Girish v. Excise Inspector and Another

Kerala HC27 Oct 2016CRL.A/430/2009

Case brief

AI extract

What is this about?

A criminal appeal against conviction under the Abkari Act. The High Court held that the Assistant Excise Inspector who registered the crime report was not competent under Notification SRO No.234/1967, rendering the proceedings illegal. The appeal was allowed, conviction set aside, and appellant acquitted.

What did the court decide?

Criminal appeal allowed. Conviction and sentence set aside. Appellant acquitted.

Girish Vs Excise Inspector and Another — Narcotics (NDPS) | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

¶4

THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938

¶5

CRL.A.No. 430 of 2009

¶6

JUDGMENT DATED 28-01-2009 IN SC 124/2007 OF ADDL. DISTRICT COURT (ADHOC) III, PATHANAMTHITTA

¶7

APPELLANT(S)/ACCUSED:

¶8

GIREESH, AGED 42 YEARS, S/O THEVAN, THAZHATHETHI VEEDU, THENGAMOM MURI, PALLICKAL VILLAGE, ADOOR TALUK,, PATHANAMTHITTA.

¶9

BY ADVS.SRI.PRADEESH CHACKO SRI.K.ANAND

¶10

RESPONDENT(S):

¶11

1. EXCISE INSPECTOR, ADOOR EXCISE RANGE, ADOOR PATHANAMTHITTA.

¶12

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

¶13

BY SENIOR PUBLIC PROSECUTOR SRI.HRITWIK

¶14

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

¶15

msv/

¶16

B. KEMAL PASHA, J.

¶17

¶18

Crl. Appeal No.430 of 2009

¶19

Dated this the 27^th day of October, 2016

¶20

J U D G M E N T

¶21

~ ~ ~ ~ ~ ~ ~ ~ ~

¶22

Appellant is the accused in SC No.124/2007 of

¶23

the Additional Sessions Court, Adhoc-II, Pathanamthitta, who stands convicted for the offence under Section 8(2) of

¶24

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.

¶25

The prosecution case is that on 28.05.2003 at

¶26

6.15 p.m., the accused was found transporting 10 litres of arrack in a can through the Kadampanadu - Thengamom road near Punnattinkara culvert, in contravention of the provisions of the Abkari Act.

¶27

The offence was detected by PW5 Circle

¶28

Crl.A.430/2009

¶29

: 2 :

¶30

Inspector of Excise. He seized the contraband through Ext.P1 mahazar, and placed the accused under arrest through Ext.P2 arrest memo. A sample of 200 ml. was drawn from the contraband. He produced the accused along with the contraband, sample and records at the Adoor Excise Office. PW3 Assistant Excise Inspector, who was in additional charge of Excise Inspector, registered Ext.P3 crime and occurrence report. He produced the properties before court through Ext.P5 property list. Forwarding note was furnished. On getting Ext.P7 certificate of chemical analysis, PW6 Excise Inspector, Adoor filed the final report.

¶31

On the side of the prosecution, PWs 1 to 6 were examined, Exts.P1 to P7 were marked, and MO1 was identified. No defence evidence was adduced. The court below found the accused guilty of the offence punishable under Section 8(2) of the Abkari Act, convicted him thereunder, and sentenced him as aforesaid.

¶32

Heard learned counsel for the appellant and

¶33

Crl.A.430/2009

¶34

: 3 :

¶35

learned Senior Public Prosecutor.

¶36

The question to be considered in this appeal is

¶37

whether PW3 was competent and authorised to register the crime and occurrence report, which is the foundation of the case. Admittedly, PW3 was the Assistant Excise Inspector. According to PW3, he was in additional charge of the Excise Inspector.

¶38

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 appointed. PW3 has no case that he was appointed as Excise Inspector, Adoor as on the date of registration of the crime. The prosecution has not produced any document to show that PW3 was appointed as Excise Inspector of Adoor Excise Range for enabling him to register the crime and occurrence report in this case. Matters being so, it has to be held that

¶39

Crl.A.430/2009

¶40

: 4 :

¶41

PW3 was not competent or authorised to perform any of the acts and duties contemplated under Sections 40 to 53 of the Abkari Act. Therefore, the registration of the crime in this case as such was illegal, which 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.

¶42

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.

¶43

Sd/- (B.KEMAL PASHA, JUDGE)

¶44

aks/27/10

¶45

// True Copy //

¶46

PA to Judge

Girish v. Excise Inspector and Another

Case brief

What is this about?

What did the court decide?

Girish v. Excise Inspector and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Nissar Vs Manoj.P.S.

E.Jayakumar Vs v.Satheesh Chandran

Thankamani Vs Excise Inspector

Shaji Nadumuri Vs B.Sukeshan and Another

Sivan Pillai Vs State of Kerala and Another

Reji Vs State of Kerala