Allowed

Srinivasan v. State of Kerala

Kerala HC19 Aug 2016CRL.A/612/2009

Case brief

AI extract

What is this about?

The appellant, convicted and sentenced under the Abkari Act for transporting IMFL, challenged the conviction arguing that the crime was illegally registered by a Preventive Officer lacking the requisite authority. The court, upholding the complaint of gross illegality in the crime registration procedure contrary to the relevant notification, set aside the conviction and acquitted the appellant.

What did the court decide?

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

Srinivasan 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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FRIDAY, THE 19TH DAY OF AUGUST 2016/28TH SRAVANA, 1938

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CRL.A.No. 612 of 2009 ( )

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SC 728/2006 of ADDL. SESSIONS COURT, VADAKARA

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APPELLANT(S)/ACCUSED::

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SRINIVASAN, S/O.MADHAVAN, KUNNEKKADU HOUSE, THEKKUMURI DESOM, TIRUR TALUK, MALAPPURAM DISTRICT.

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BY ADVS.SRI.P.SANJAY SRI.M.MUHAMMED SHAFI

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RESPONDENT(S)/COMPLAINANT::

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

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BY PUBLIC PROSECUTOR SRI. HRITWIK C.S.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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Crl. Appeal No.612 of 2009

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Dated this the 19^th day of August, 2016

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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Appellant is the accused in SC No.728/2006 of

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the Additional Sessions Court, Vadakara, who stands convicted under Section 55(a) of the Abkari Act and

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sentenced to undergo rigorous imprisonment for 1½ years and to pay a fine of `1 lakh, in default to undergo rigorous imprisonment for six more months.

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The prosecution case is that on 09.03.2004 at about 1.10 p.m., the accused was found transporting 27 litres of IMFL meant for sales in State of Pondicherry only, through the Kannur - Kozhikode National Highway, in

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Crl.A.612/2009

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: 2 :

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contravention of the provisions of the Abkari Act.

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The offence was detected by PW1, Preventive

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Officer of Vadakara Excise Range. He seized the contraband through Ext.P3 mahazar. He placed the accused under arrest through Ext.P2 arrest memo. A sample was drawn from the contraband. He reached the office with the accused, properties, sample and the records and registered Ext.P5 crime and occurrence report. He produced the properties and sample before court on the same day through Ext.P6 property list. A forwarding note was filed, the copy of which is Ext.P7. PW5, Excise Inspector, Vadakara, took over the investigation on 02.09.2005. He conducted the investigation and on getting Ext.P11 certificate of chemical analysis, filed the complaint.

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

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examined and Exts.P1 to P11 were marked. No defence evidence was adduced. The court below found the accused guilty of the offence under Section 55(a) of the Abkari Act,

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Crl.A.612/2009

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: 3 :

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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 that there is gross illegality in the registration of the crime in the case since the crime was registered by PW1, Preventive Officer of Excise, who was not competent or authorised to register the crime. It is argued that therefore, the entire proceedings in the case have become illegal and the conviction and sentence passed by the court below are liable to be set aside.

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It is the admitted case of PW1 that he registered the crime on reaching the office and at that particular point of time, he was the Preventive Officer of Excise. It was PW1, who registered the crime through Ext.P5 crime and occurrence report. The said act of PW1 was apparently illegal and unauthorised. The said act is in gross violation of the Notification SRO No.234/1967. As per the said

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Crl.A.612/2009

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: 4 :

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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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Ext.P5 crime and occurrence report shows that the same was prepared and signed by PW1. Below his name, it is shown as “ for Excise Inspector, Vadakara Range ”. When abkari officers are appointed through the above Notification, and it is specified that such abkari officers are empowered to perform the acts and duties contemplated under Sections 40 to 53 of the Abkari Act, PW1, who was the Preventive Officer of Excise, was not competent or authorised to perform such acts. There is no document to show that PW1 was appointed as Excise Inspector of Vadakara Excise Range to perform such acts. Matters being so, Ext.P5 and all consequent proceedings in the case have become illegal. Therefore, the conviction and

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Crl.A.612/2009

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: 5 :

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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/19/08

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// True Copy //

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PA to Judge

Srinivasan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Srinivasan v. State of Kerala

Case brief

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What did the court decide?

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