High Court allowed criminal appeal and set aside conviction and sentence under Abkari Act. Prevention officer was not authorized to register crime report, rendering conviction unsustainable. Appellants acquitted.
Conviction and sentence set aside; Appellants acquitted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
MONDAY, THE 5TH DAY OF SEPTEMBER 2016/14TH BHADRA, 1938
CRL.A.No. 579 of 2009 ( )
SC 277/2007 of ADDITIONAL SESSIONS COURT (ADHOC-II), THODUPUZHA
APPELLANT/ACCUSED:
1. KURUVILLA, S/O.KORA, PAZHUKAYIL VEEDU, THOKKUPARA KARA, PALLIVASAL VILLAGE.
2. DEVASSIA @ KUNJUMON, S/O.OUSEPH, PUTHENPURAKKAL VEEDU, THOKKUPARA KARA, PALLIVASAL VILLAGE.
BY ADVS.SRI.M.T.SURESHKUMAR SRI.V.K.SUBRAMANIAN
RESPONDENT/RESPONDENT:
STATE OF KERALA, REPRESENTED BY THE INSPECTOR, EXCISE RANGE, ADIMALY THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, (CRIME NO.13/2006 OF ADIMALY EXCISE RANGE).
BY SR.PUBLIC PROSECUTOR SRI.ALEX M. THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DSV/6/9/16
B. KEMAL PASHA, J
=================
Crl.Appeal No.579 of 2009
=================
Dated this the 5th day of September, 2016
J U D G M E N T
The appellants are the accused in Sessions Case No.277 of 2007 of the Additional Sessions Court (Adhoc-II), Thodupuzha, who stand convicted under Section 55(a) of the Abkari Act and each of whom sentenced to undergo rigorous imprisonment for one year and to pay a fine of `1,00,000/-, in default to undergo simple imprisonment for three months.
at 9.20 p.m., A1 was found carrying of 4.500 litres of coloured illicit liquor in 3 bottles in a gunny bag and A2 was found carrying 4.500 litres of coloured illicit
Crl.A.No.579 of 2009 2
liquor in 3 bottles in a big shopper, at Althara Junction
in Anachal Kara, in contravention of the provisions of the Abkari Act.
Inspector of the Munnar Excise Range. He seized the contraband through Exhibit-P1 mahazar. Separate samples were drawn from the contraband seized from the possession of both the accused. Both the accused were placed under arrest through Exhibits-P2 and P3 arrest memos. He handed over the contraband, the samples, the accused and the records to the Adimaly Excise Office, since the place of occurrence was coming within the local limits of the Adimaly Excise Range. PW-4, Preventive Officer of Excise, Adimaly, registered Exhibit-P4 crime and occurrence report. PW-5, Excise Inspector, conducted the investigation and filed the complaint on getting Exhibit-P7
Crl.A.No.579 of 2009 3
certificate of chemical analysis.
5 were examined, Exhibits-P1 to P7 were marked, and MO-1 to MO-8 were identified. On the side of the accused, DW-1 and DW-2 were examined. The court below found the appellants guilty of the offence punishable under Section 55(a) of the Abkari Act, convicted them thereunder and sentenced them as aforesaid.
appellants and the learned Public Prosecutor.
occurrence report was registered by the Preventive Officer of Adimaly Excise Range. The offence was detected by PW1, Excise Inspector of Munnar Excise Range. He had entrusted the accused, the contraband, the sample and the mahazar to the Excise Officials at
Crl.A.No.579 of 2009 4
Adimaly Excise Range.
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 area for which they were appointed. Here, in this particular case, PW-4 was not competent or authorised to register the crime and occurrence report, he being a Preventive Officer of Excise. The prosecution has not produced any evidence to show that PW-4 was appointed as Excise Inspector for the area in which the place of occurrence
in this case is situated. Therefore, the registration of the crime and occurrence report itself has become illegal. The said gross illegality cannot be cured. Matters being so, on that simple score itself, the conviction and sentence passed by the court below
Crl.A.No.579 of 2009
5
are not legally sustainable and therefore, the same are liable to be set aside.
In the result, this Crl.Appeal is allowed and the conviction and sentence passed by the court below are set aside. The appellants are acquitted.
Sd/-
B. KEMAL PASHA, JUDGE.
DSV/6/9/16
// True Copy //
P.A. To Judge
2 issues framed by the court
Whether preventive officer of Excise is competent to register crime report under Abkari Act.
Whether illegality in registration of crime report vitals conviction and sentence.
2 provisions across 1 enactments
Kuruvilla
Devassia @ Kunjumon
State of Kerala
B. Kemal Pasha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
