Allowed

Santha v. State of Kerala

Kerala HC9 Aug 2016CRL.A/529/2009

Case brief

AI extract

What is this about?

In this criminal appeal, the appellant challenged her conviction under Section 8(2) of the Kerala Abkari Act for possession of arrack. The High Court held that the officer who registered the crime was not empowered unless appointed as Excise Inspector. Withdrawing conviction as illegal, the court acquitted the appellant.

What did the court decide?

The criminal appeal is allowed. The conviction and sentence are set aside. The appellant is acquitted.

Santha Vs State of Kerala — Narcotics (NDPS) | 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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TUESDAY, THE 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938

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CRL.A.No. 529 of 2009 (A)

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SC.NO. 998/2006 OF ADDL. DISTRICT & SESSIONS COURT, VADAKARA CRIME NO.68/2004 OF VADAKARA EXCISE RANGE

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APPELLANT/ACCUSED:

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SANTHA, D/O. CHATHU, COOLIE, KAPPUNKARA MEETHAL, MANTHUR AMSOM, EDATHUMKARA DESOM, VADAKARA.

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BY ADVS. SRI. P. KESAVAN NAIR SRI.K.G.CLEETUS

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RESPONDENT :

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, THE EXCISE INSPECTOR, EXCISE RANGE OFFICE,VADAKARA.

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BY PUBLIC PROSECUTOR SMT. P.MAYA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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B. KEMAL PASHA, J.

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= = = = = = = = = = = = = = = = = Crl. Appeal No. 529 of 2009

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- - - - - - -- - - - - - - - - - - - - - Dated this the 9th day of August, 2016

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J U D G M E N T

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Appellant is the accused in Sessions Case No.998 of 2006 of the Additional Sessions Court, Vadakara, who stands convicted under Section 8(2) of the Kerala Abkari Act,1077 (hereinafter referred to as 'the Act') and sentenced to undergo rigorous imprisonment for one year and to pay a fine of `1,00,000/-, in default, to undergo rigorous imprisonment for six more months.

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The prosecution case is that on 27.10.2004 at 2.30 p.m., the accused was found in possession of 5 litres of arrack in a can, on a pathway in Manathur Amsom, Vadakara Taluk. The offence was detected by PW1, Preventive Officer of Excise Circle, Vadakara. He seized the contraband through

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Crl. Appeal No. 529 of 2009

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Ext.P1 Mahazar. The accused was not placed under arrest since Women Police Constables or Women officers of the Excise were not present. A sample of 180 ml.was drawn from the contraband. He produced the contraband, sample and records before PW5, Preventive Officer, who was in-charge of Excise Inspector, Vadakara. PW5 registered Crime No.68 of 2004 through Ext.P2 crime and occurrence report. He produced the sample, before the court through Ext.P3 property list on the next day. The balance contraband was handed over to the Excise Inspector. Subsequently, an inventory list was prepared in respect of the balance contraband. PW7, Excise Inspector, Vadakara, conducted the investigation and filed the complaint on getting Ext.P8 certificate of chemical analysis.

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Crl. Appeal No. 529 of 2009

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-: 3 :-

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On the side of the prosecution, Pws.1 to 8

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were examined and Exts.P1 to P8 were marked. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Section 8(2) of the Act, convicted her thereunder and sentenced her 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 pointed out that there is gross illegality in the registration of the crime in this case and PW5, who had allegedly registered the crime was not authorised to perform such a function. It is also argued that there is no sufficient identification of

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the accused in the case and the accused was not placed under arrest.

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Crl. Appeal No. 529 of 2009

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-: 4 :-

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PW1 was the Preventive Officer attached to

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the Excise Circle, who allegedly detected the offence. PW2, Excise Guard was also present along with PW1. PW1 and PW2 have identified the accused in court. PW1 produced the contraband, the sample and records before PW5, Preventive Officer of Vadakara Excise Range, who was in-charge of the Excise Inspector. PW5 registered the crime through Ext.P2 crime and occurrence report.

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As per notification SRO No.234 of 1967 all Officers of Excise not below the rank of Excise Inspectors were appointed as Abkari Officers to perform the acts and duties contemplated under Sections 40 to 53 of the Act, within the area, for which they were appointed. In this particular case, PW5 was the Preventive Officer of Vadakara Excise

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Crl. Appeal No. 529 of 2009

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Range. According to him, he was in-charge of the Excise Inspector, Vadakara. The prosecution has not produced any documents to show that PW5 was appointed as Excise Inspector of Vadakara Excise Range as on the date of incident. In the absence of any evidence to show that he was so appointed, it can only be considered that he was only a Preventive Officer, who was not empowered or authorised to perform the duties and functions contemplated under Sections 40 to 53 of the Act, as per the notification (supra). Matters being so, the registration of the crime itself is illegal. Therefore, no further discussion is required to conclude that the conviction and sentence passed by the court below are not legally sustainable. The conviction and sentence passed by the court below

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Crl. Appeal No. 529 of 2009

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-: 6 :-

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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 are set aside. The appellant is acquitted.

Sd/-

B. KEMAL PASHA,

JUDGE

DST

//True copy//

P.A. To Judge

Santha v. State of Kerala

Case brief

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Santha v. State of Kerala

Case brief

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