Allowed

Manikandan v. State of Kerala

Kerala HC2 Aug 2018CRL.A/1113/2011

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the criminal appeal, acquitting the appellant. The Court held that conviction under Section 58 of the Kerala Abkari Act was unsustainable because the crime report was registered by a Preventive Officer without specific statutory authorisation to do so under Section 4 of the Act.

What did the court decide?

Appellant acquitted; conviction and sentence of the trial court set aside.

Manikandan Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR. JUSTICE P.UBAID

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THURSDAY, THE 2ND DAY OF AUGUST 2018 / 11TH SRAVANA, 1940

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IN SC 292/2009 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR DATED 02-06-2011

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APPELLANT(S)/ACCUSED:

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MANIKANDAN, S/O.SANKARA NARAYANAN, THONDANGAVIL HOUSE, THIRUMANI DESOM,, ELANAD VILLAGE, THALAPPILLY TALUK.

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BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.UNNI SEBASTIAN KAPPEN

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SRI.VIPIN NARAYAN

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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. C.K. PRASAD

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.UBAID, J.

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- - - - Crl.A. No. 1113 of 2011

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- - - - Dated this the 02^nd day of August, 2018

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J U D G M E N T

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The appellant herein challenges the conviction and sentence against him under Section 58 of the Kerala Abkari Act (hereinafter referred to as “the Act”) in S.C.No. 292 of 2009, of the Court of Session, Thrissur. He faced prosecution before the learned Additional Sessions Judge, (Adhoc-I), Thrissur, on the allegation that when a Preventive Officer of the Pazhayannur Excise Range conducted a search at his house, the accused was found possessing 5 litres of illicit liquor in a plastic can at the shop attached to his house. The detection was made on 13.01.2008 at about 12.30 p.m.. The Preventive Officer arrested the accused on the spot, and seized the plastic can allegedly containing liquor. He produced the accused and the properties at the Excise Range Office where another Preventive Officer registered the crime and occurrence report. The Excise Inspector

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Crl.A. No. 1113 of 2011

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investigated the case, and submitted final report in court.

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The accused appeared before the learned trial

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Judge, and pleaded not guilty to the charge framed against him. The prosecution examined five witnesses, and proved Exts.P1 to P10 documents in the trial court.

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The accused denied the incriminating circumstances, and projected a defence of total denial, when examined under Section 313 Cr.P.C.. He did not adduce any evidence in defence.

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On an appreciation of the evidence, the trial court found the accused guilty under Section 58 of the Act. On conviction, he was sentenced to undergo rigorous imprisonment for three months, and to pay a fine of Rs. 1 lakh. Aggrieved by the judgment of conviction dated 02.06.2011, the accused has come up before this Court in appeal.

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On hearing both sides, and on a perusal of the materials, I find that there are some legal infirmities in

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Crl.A. No. 1113 of 2011

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this case, the benefit of which must go to the accused.

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This Court has consistently held in so many

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decisions that the various functions under the Act can be discharged only by the officers specifically appointed and authorised as Abkari Officers by the Government under Section 4 of the Act. In terms of Section 4 of the Act, the Government of Kerala issued a notification in 1967 as S.R.O. 234 of 1967 by which different powers under the Act were conferred on different categories of Excise Officials. Preventive Officers were given powers under the notification only to detect offences, and they were not given powers to register crimes, or to investigate crimes, or to submit final report. In this case, the detection was made by a Preventive Officer, but the crime and occurrence report was registered by another Preventive Officer. This Court has settled that for Preventive Officers to discharge the functions of Excise Inspectors, there must be authorisation by the Government under Section 4 of the Act. Even when a Preventive Officer

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is put in charge of the Excise Inspector, he cannot register crimes under the Act, when there is no specific authorisation by the Government. For a Preventive Officer to register crime and occurrence report, there must be a specific notification under Section 4 of the Act, authorising Preventive Officers also to register crimes under the Act. This is a case built on the crime registered by an incompetent excise official. On this legal ground itself, the accused is entitled for acquittal.

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This Court has settled the legal position that the copy of the forwarding note produced in court must contain the specimen of the seal affixed on the sample. PW1 is the detecting officer, and PW4 is the Excise Inspector who investigated the case. Nobody has explained what seal was affixed on the sample by the detecting officer. The copy of the forwarding note produced in this case contains a specimen seal, but curiously enough, the covering letter attached to the forwarding note contains another seal. It is

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not known which among the two seals was in fact affixed on the sample by the detecting officer. The mahazar also does not show what seal was affixed on the sample. The case of PW1 is that it was during the enquiry on the Ext.P4 complaint against the accused, he got information about the liquor in the possession of the accused, and it was accordingly he proceeded to search the house of the accused. The house number or the shop number is not seen mentioned in the detection mahazar. There is absolutely nothing against the accused in the Ext.P4 complaint. The said complaint is against one Promod and his associates, and not against the accused in this case. 8. As discussed above, this is a prosecution

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based on a crime and occurrence report registered by an incompetent excise official, and the prosecution has no definite or consistent case as to what seal was in fact affixed on the sample. In the absence of such evidence, the sample produced in court cannot be identified as the one taken or

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collected form the possession of the accused. The benefit of the doubtful circumstances and infirmities discussed must go to the accused.

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In the result, this appeal is allowed. The appellant is found not guilty of the offence alleged against him, and accordingly, he is acquitted of the offence in appeal. Accordingly, the conviction and sentence against the appellant in S.C. No. 292 of 2009 of the trial court will stand set aside.

Sd/- P.UBAID

JUDGE

ds 02.08.2018

//True Copy//

P.A. To Judge

Manikandan v. State of Kerala

Case brief

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Manikandan v. State of Kerala

Case brief

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