Allowed

Appu @ Krishnankutty v. the State of Kerala

Kerala HC7 Sept 2016CRL.A/732/2009

Case brief

AI extract

What is this about?

This court allowed the criminal appeal against a conviction under the Abkari Act for transporting arrack. The High Court acquitted the appellant because the Assistant Excise Inspector lacked proof of appointment to register the crime report and no evidence existed to show when the contraband was produced before the lower court, rendering the conviction unauthorized.

What did the court decide?

Appellant acquitted; conviction and sentence by the Additional Sessions Court are set aside.

Appu @ Krishnankutty Vs the State of Kerala — Cheque Dishonour | 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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WEDNESDAY, THE 7TH DAY OF SEPTEMBER 2016/16TH BHADRA, 1938

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CRL.A.No. 732 of 2009 ( )

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AGAINST THE JUDGMENT IN SC 389/2008 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI DATED 28-03-2009

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APPELLANT(S)/ACCUSED:

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APPU @ KRISHNANKUTTY, S/O.SANKARAN, MANGATTIRI HOUSE, AKAMPADAM,MALAPPURAM DISTRICT.

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BY ADV. SRI.BABU S. NAIR

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RESPONDENT(S)/STATE:

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THE STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, NILAMBUR EXCISE RANGE -, THROUGH THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.

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BY PUBLIC PROSECUTOR SRI.C.S.HRITWIK.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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STU

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B.KEMAL PASHA, J.

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================

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Crl.A. No.732 of 2009

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======================= Dated this the 7^th day of September, 2016

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JUDGMENT

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Appellant is the accused in S.C.No.389/2008 of the Additional Sessions Court (Adhoc-III), Manjeri, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of 1,00,000/-, in default to undergo₹ rigorous imprisonment for two more months.

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The prosecution case is that on 19.01.2008 at 7.30 a.m., the accused was found transporting 5 litres of arrack at a place called Akampadam, in contravention of the provisions of the Abkari Act.

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The offence was detected by PW1 Assistant Excise Inspector, Nilambur Excise Range. He seized the contraband through Ext.P1 mahazar. A sample of 200 ml. was drawn. He placed the accused under arrest. He

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Crl.A. No.732 of 2009

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registered Ext.P2 crime and occurrence report. PW5 Excise Inspector, Nilambur conducted the investigation and filed the complaint on getting Ext.P5 certificate of chemical analysis.

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On the side of the prosecution, PWs.1 to 5 were examined, Exts.P1 to P5 were marked and MO1 was identified. No defence evidence was adduced. The court below found the appellant guilty of the offence punishable under Section 8(1) 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 that the registration of the crime and occurrence report in this case itself is totally illegal and therefore, the same ought not to have been relied on. It has also been argued that there is no evidence in this case to show as to when the contraband and sample were produced before the court below and as to who had produced the property before the

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Crl.A. No.732 of 2009

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court below. According to the learned counsel for the appellant, the court below ought not to have relied on Ext.P5 certificate of chemical analysis to enter in the conviction.

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This is a case, wherein, PW1 Assistant Excise Inspector, Nilambur has detected the offence and registered Ext.P2 crime and occurrence report. As per notification No.SRO-234/1967, all officers of the Excise, not below the rank of Excise Inspectors are appointed as Abkari Officers, to perform the acts and duties mentioned under Sections 40 to 53 of the Abkari Act, within the area, for which, they are appointed. Here, in this particular case, PW1 was the Assistant Excise Inspector. The prosecution has not produced any documents to prove that PW1 was appointed as Excise Inspector for Nilambur Excise Range as on the date of incident. Therefore, there is absolutely nothing to show that PW1 was authorised to register Ext.P2 crime and occurrence report. Matters being so, the registration of Ext.P2 itself was illegal and

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Crl.A. No.732 of 2009

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unauthorised.

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Apart from all the above, the prosecution has not adduced any evidence to prove the date on which the sample was produced before court. Either the property list or even a copy of the forwarding note has not been proved. Even PW1 has not stated as to who has produced the property before court. In the absence of any evidence to show as to the date on which the property and the sample were produced before court, the court below ought not to have relied on Ext.P5 for entering in the conviction. Matters being so, 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 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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stu

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//TRUE COPY//

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P.A TO JUDGE.

Appu @ Krishnankutty v. the State of Kerala

Case brief

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Appu @ Krishnankutty v. the State of Kerala

Case brief

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