In Criminal Appeal No.844 of 2009, this High Court of Kerala set aside the conviction and sentence under the Abkari Act because the Preventive Officer who registered the crime report was not an authorized Abkari Officer under SRO 234/1967, rendering the foundation of the case illegal.
Conviction and sentence set aside; appellant 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
THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938
CRL.A.No. 844 of 2009 (A)
SC 67/2007 of ADDITIONAL SESSIONS COURT (ADHOC-III), PATHANAMTHITTA
APPELLANT/ACCUSED:
RAJU, AGED 40 YEARS, S/O.KOCHUKUNJU, THAZHATHETHIL VEEDU, THENGAMAM MURI, PALLICKAL VILLAGE, ADOOR TALUK.
BY ADV. SRI.NIREESH MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, ADOOR, PATHANAMTHITTA DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY SR.PUBLIC PROSECUTOR SRI.C.S.HRITHWIK
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DSV/7/10/16
B. KEMAL PASHA, J ================ Crl.Appeal No.844 of 2009
====--===========
Dated this the 6th day of October, 2016
J U D G M E N T
The appellant is the accused in Sessions Case
No.67 of 2007 of the Additional Sessions Court (AdhocIII), Pathanamthitta, who stands convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for 1 ½ years and to pay a fine of `1,00,000/-, in default to undergo simple imprisonment for three months.
at 6.15 p.m., the accused was found transporting 2 litres of arrack in a 5 litres capacity can through the
Crl.A.844/09
2
Kadambanadu-Thengamom road, in contravention of the provisions of the Abkari Act.
Crl.A.844/09
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aforesaid.
and the learned Senior Public Prosecutor.
pointed out that there was gross violation of the legal provisions in the registration of the crime and occurrence report in this case and PW3 was not competent or authorised to register Exhibit-P3 crime and occurrence report. It is argued that when the foundation of the case itself has been lost, the conviction and sentence passed by the court below are liable to be set aside.
Crl.A.844/09 4
Officer. He could not be considered as an Abkari Officer, within the meaning of the aforesaid notification. When he has opted to register the case through Exhibit-P3 crime and occurrence report, the same has resulted in gross illegality. The registration of the crime itself has become illegal. Matters being so, much discussion is not required to conclude that the conviction and sentence passed by the court below are liable to be set aside.
In the result, this Crl. Appeal is allowed. The conviction and sentence passed by the court below are set aside and the appellant is acquitted.
Sd/B. KEMAL PASHA, JUDGE.
DSV/6/10/16
// True Copy //
P.A. To Judge
1 issue framed by the court
Whether PW3, a Preventive Officer, was authorized to register a crime and occurrence report to found the prosecution case for an offence under the Abkari Act.
2 provisions across 2 enactments
Raju
State of Kerala
B. Kemal Pasha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
