Allowed

Subhadra v. State of Kerala

Kerala HC15 Dec 2016CRL.A/559/2009

Case brief

AI extract

What is this about?

A criminal appeal challenging a conviction for possession of arrack. The High Court observed that the officer registering the crime report was not shown to be competent and the contraband sample was not drawn in the accused's presence or by an authorized officer, rendering the conviction unsafe. The appeal was allowed, conviction set aside, and the accused acquitted.

What did the court decide?

Conviction and sentence set aside; accused acquitted.

Subhadra 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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THURSDAY, THE 15TH DAY OF DECEMBER 2016/24TH AGRAHAYANA, 1938

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CRL.A.No. 559 of 2009 ( )

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AGAINST THE JUDGMENT IN SC 963/2002 of ADDL.DIST. COURT (ADHOC)III, TRIVANDRUM DATED 30-01-2009

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APPELLANT(S)/ACCUSED:

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SUBHADRA,AGED 59, D/O.BHAVANI, ROADARIKATHU VEEDU,KAVINPURAM,VILAPPIL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DIST.

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BY ADVS.SRI.R.T.PRADEEP SRI.V.VIJULAL

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RESPONDENT(S)/COMPLAINANT:

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

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R BY SENIOR PUBLIC PROSECUTOR SRI.ALEX.M.THOMBRA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.KEMAL PASHA, J.

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Crl.Appeal No.559 of 2009

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Dated this the 15^th day of December, 2016

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JUDGMENT

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Appellant is the accused in Sessions Case No.963/02 of

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the Additional Sessions Court Adhoc-III, Thiruvananthapuram, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for three more months.

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The prosecution case is that on 24.09.99 at 12 noon, the accused was found in possession of 1½ litres of arrack in a can at the southern side of Kavinpuram Sastha temple, in contravention of the Provisions of the Abkari Act.

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The offences was detected by PW1 Preventive Officer

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of the Excise Enforcement and Anti Narcotic Special Squad, Thiruvananthapuram. He placed the accused under arrest and seized the contraband through Ext.P1 mahazar. Ext.P2 is the arrest memo. He produced the accused, contraband and records

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before PW3 Preventive Officer of Excise at the Excise Range

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Crl.Appeal No.559 of 2009 2

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Office, Kattakkada. PW3 registered Ext.P5 crime and occurrence report. He produced the property before court through Ext.P6 property list. Forwarding note was furnished, the copy of which is Ext.P7. PW5 Excise Inspector, Kattakkada conducted the investigation and filed the final report in this case on getting Ext.P8 certificate of chemical analysis, which shows that the sample contained 40.82% by volume of ethyl alcohol.

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On the side of the prosecution, PWs 1 to 6 were

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examined, Ext.P1 to Ext.P8 were marked, and MO1 was identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under

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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 Senior Public Prosecutor.

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The learned counsel for the appellant has argued that

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PW3 was not competent or authorised to register the crime and occurrence report in this case and therefore, all the proceedings in this case have become illegal. It has also been argued that

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Crl.Appeal No.559 of 2009 3

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even though PW1 had allegedly seized the contraband, no sample was drawn in the presence of the accused at the spot. The sample was allegedly drawn by PW6 Property Clerk attached to the Judicial First Class Magistrate Court, Kattakkada.

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PW3 was the Preventive Officer of the Kattakkada Excise Range. According to PW3, he was in charge of the Excise Inspector. Whatever it is, the prosecution has not adduced any evidence to show that PW3 was appointed as Excise Inspector, Kattakkada on that particular date. As per notification SRO No.234/1967, all Officers of Excise not below the rank of Excise Inspectors were appointed as Abkari Officers to perform the acts

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and duties contemplated under Sections 40 to 53 of the Abkari Act, within the area for which they were appointed. When there is nothing to show that PW3 was appointed as Excise Inspector for the said area, the registration of the crime and occurrence report in this case was illegal.

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Over and above it, it seems that PW1 had failed to

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draw any sample from the contraband. On the contrary, the task for taking the sample was entrusted to PW6 Property Clerk of the

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Crl.Appeal No.559 of 2009 4

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Judicial First Class Magistrate Court, Kattakkada. Even though, PW6 had allegedly drawn the sample, there is absolutely nothing to show the date on which the sample was drawn and the date on which the same was forwarded. Even though PW6 claims that he was authorised by the learned Magistrate to draw the sample, no such order is available. Admittedly the sample was not drawn in the presence of the accused. From all these, this Court is satisfied that it is not at all safe to convict the accused on the basis of the available evidence in this case and the conviction and sentence passed by the court below are liable to be set aside.

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In the result, this Crl.Appeal is allowed. The

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conviction and sentence passed by the court below are set aside

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and the accused is acquitted.

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Sd/- B.KEMAL PASHA JUDGE

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//TRUE COPY//

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P.A. TO JUDGE

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AD/16/12/16

Subhadra v. State of Kerala

Case brief

What is this about?

What did the court decide?

Subhadra 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

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