Allowed

Gopalan v. State of Kerala

Kerala HC9 Sept 2016CRL.A/466/2009

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the criminal appeal against a conviction under Section 8(2) of the Abkari Act for transporting arrack. The court held that the Preventive Officer lacked authority to register the crime report under Notification SRO.234/1967, rendering the proceedings illegal.

What did the court decide?

The conviction and sentence passed by the court below were set aside, and the appellant was acquitted.

Gopalan Vs State of Kerala — 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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FRIDAY, THE 9TH DAY OF SEPTEMBER 2016/18TH BHADRA, 1938

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CRL.A.No. 466 of 2009 ( )

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AGAINST THE ORDER/JUDGMENT IN SC 1181/2006 of ADDL.SESSIONS COURT (ADHOC)-II, KOZHIKODE DATED 04-02-2009

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APPELLANT(S)/ACCUSED:

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GOPALAN, S/O.VELAYUDHAN, KONNAMKUZHI, FEROKE AMSOM, NALLUR DESOM, FEROKE, KOZHIKODE.

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BY ADV. SRI.P.V.KUNHIKRISHNAN

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RESPONDENT(S)/ACCUSED & STATE:

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

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BY SR. PUBLIC PROSECUTOR SRI.C.S.HRITHWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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Crl. Appeal No.466 of 2009

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Dated this the 9^th day of September, 2016

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~ ~ ~ ~ ~ ~ ~ ~ ~

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Appellant is the accused in SC No.1181/2006 of

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the Additional Sessions Court, Adhoc-II, Kozhikode, who stands convicted for the offence under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of ₹1 lakh, in default to

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undergo rigorous imprisonment for six months.

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The prosecution case is that on 06.09.2005 at 8.30 p.m., the accused was found transporting 10 litres of arrack in a can by Scooter bearing registration No.KL-11-4785 through the Kozhikode - Ramanattukara road, in contravention of the provisions of the Abkari Act.

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The offence was detected by PW1 Preventive Officer of Excise, Feroke Excise Range. He seized the contraband through Ext.P1 mahazar and placed the

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Crl.A.466/2009

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: 2 :

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accused under arrest through Ext.P3 arrest memo. A sample of 200 ml. was drawn from the contraband. On reaching the excise office with the accused, the contraband, the sample and records, he registered Ext.P4 crime and occurrence report. He produced the sample before court and furnished the forwarding note, copy of which is Ext.P5. PW3, Excise Inspector, Feroke Excise Range, conducted the investigation and filed the final report on getting Ext.P6 certificate of chemical analysis.

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On the side of the prosecution, PWs 1 to 3 were examined, Exts.P1 to P7 were marked and MO1 series were 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.

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Heard learned counsel for the appellant and learned Public Prosecutor.

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Learned counsel for the appellant has argued

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Crl.A.466/2009

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: 3 :

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that there is gross illegality in the registration of the crime as such and, therefore, all the proceedings before the court below have become illegal. It has also been pointed out that the contraband and sample were not produced on time before the court below and, therefore, the court below ought not to have relied on Ext.P6 certificate of chemical analysis.

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As rightly pointed out by the learned counsel for the appellant, there is gross violation of the Notification SRO.234/1967 in this case. 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. PW1 was only a Preventive Officer of Excise. As per the said Notification, he was not competent or authorised to register Ext.P4 crime and occurrence report. Matters being so, even the foundation of the case has become illegal. The said illegality cannot be

Crl.A.466/2009

: 4 :

cured.

Apart from the above, no property list has been produced. According to PW1, he produced the sample before court on the next day. At the same time, there are no documents to show that the sample was produced on the next day. There is no evidence to show as to who has produced the sample. There is no evidence to show as to when the sample was produced. Matters being so, Ext.P6 certificate of chemical analysis cannot be relied on. 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.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/09/09

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// True Copy // PA to Judge

Gopalan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Gopalan v. State of Kerala

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

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