Allowed

Shaji v. State of Kerala

Kerala HC8 Aug 2016CRL.A/525/2009

Case brief

AI extract

What is this about?

Criminal Appeal against conviction under Section 8(2) of the Abkari Act. The High Court allowed the appeal, setting aside the conviction and sentence, because the Investigation Officer was an Assistant Excise Inspector, not authorized by SRO 234/67 to conduct investigations, rendering the proceedings illegal.

What did the court decide?

Conviction and sentence set aside and the appellant is acquitted.

Shaji Vs State of Kerala — Constitutional and Fundamental Rights | 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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MONDAY, THE 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938

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CRL.A.No. 525 of 2009 (A)

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JUDGMENT DATED 05-03-2009 IN SC 6/2009 OF ADDITIONAL DISTRICT (ADHOC) FAST TRACK COURT NO.II, THRISSUR

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APPELLANT(S)/ACCUSED:

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SHAJI, S/O.VASU, KALAPURATHARA HOUSE, MATTATHUR VILLAGE, MANDARAPPILLY.

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BY ADVS.SRI.C.HARIKUMAR SRI.ARAVINDA KUMAR BABU T.K. SMT.MADHURI ANAND

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RESPONDENT(S):

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STATE OF KERALA, REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, THROUGH EXCISE INSPECTOR, EXCISE RANGE, IRINJALAKUDA.

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BY PUBLIC PROSECUTOR SMT.P.MAYA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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B. KEMAL PASHA, J.

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................................................................ Crl. Appeal No. 525 of 2009 ............................................................... Dated this the 8^th day of August, 2016

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J U D G M E N T

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The appellant is the accused in S.C.No.6/09 of the Additional Sessions Court(Adhoc-II), Thrissur, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for two years and to pay a fine of ₹1 lakh, in default, to undergo simple imprisonment for one more year.

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The prosecution case is that on 03.11.2003 at 6.15 p.m., the accused was found in possession of 2½ litres of arrack at Mattathur Village, Mandarappilly desom, in contravention of the provisions of the Abkari Act.

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The offence was detected by PW1, Preventive Officer of Excise, Irinjalakkuda in the company of PW2 Preventive Officer and party. PW1 placed the accused under arrest through Ext.P1 arrest memo and seized the contraband through Ext.P3 mahazar. A sample of 250 ml was drawn. The accused along with the contraband, the

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Crl. Appeal No. 525 of 2009

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-: 2 :-

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sample and the records were produced at the Excise Office, where PW5 Excise Inspector registered Ext.P6 crime and occurrence report. PW5 prepared Ext.P7 property list and produced the properties before court. He filed the forwarding note, the copy of which is Ext.P8. PW6 Assistant Excise Inspector, Irinjalakuda, who was in charge of the Excise Inspector, Irinjalakuda, conducted the investigation and filed the complaint on getting Ext.P12 certificate of chemical analysis.

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On the side of the prosecution, PWs.1 to 6 were examined and Exts.P1 to P12 were marked. MO1 was identified. On the side of the accused, Ext.D1 was marked. 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 the learned counsel for the appellant and the learned Public Prosecutor.

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The learned counsel for the appellant has argued

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Crl. Appeal No. 525 of 2009

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-: 3 :-

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that there is gross illegality in the investigation conducted by PW6 in this case since he was not competent to conduct the investigation. It is also argued that the complaint is not a legally filed complaint since PW6 was not authorised to do such acts.

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It is true that the crime and occurrence report was registered by PW5 Excise Inspector; at the same time, it was PW6, who as the Assistant Excise Inspector conducted the investigation in this case. According to PW6, he was in charge of the Excise Inspector, Irinjalakkuda. It seems that the said exercise conducted by PW6 was quite illegal in view of the notification SRO 234/67. As per the said notification, 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.

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In this case, PW6 was an Assistant Excise

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Crl. Appeal No. 525 of 2009 -: 4 :-

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Inspector. No order has been produced or proved by the prosecution to show that PW6 was appointed as the Excise Inspector of Irinjalakkuda range during the period in question. When the notification clearly prescribes that such powers should be exercised by an officer of the Excise Department, not below the rank of Excise Inspector, within the area for which they were appointed, PW6 was not competent to perform the acts and duties contemplated under Sections 40 to 53 of the Abkari Act and therefore, there is gross illegality in the complaint itself, and the same cannot be cured. Matters being so, the conviction and sentence passed by the court below are liable to set aside.

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In the result, this Criminal Appeal is allowed, and the conviction and sentence passed by the court below are set aside. The appellant stands acquitted.

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/-

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// true copy //

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P.S. to Judge.

Shaji v. State of Kerala

Case brief

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What did the court decide?

Shaji v. State of Kerala

Case brief

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