Allowed

Dasan, v. State of Kerala

Kerala HC22 Jan 2019CRL.A/1825/2004

Case brief

AI extract

What is this about?

The High Court allowed the appellants C.A. against conviction under the Kerala Abkari Act. The court found no forwarding note or seal specimen to identify seized wash. It also held excise officials attached to special squads lacked authorization under the relevant 1967 notification to discharge detection functions.

What did the court decide?

Conviction and sentence in S.C.643/2002 set aside and accused acquitted.

Dasan, Vs State of Kerala — Property and Title | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.UBAID

¶4

TUESDAY, THE 22ND DAY OF JANUARY 2019/2ND MAGHA, 1940

¶5

CRL.A.No.1825 of 2004

¶6

JUDGMENT IN SC 643/2002 of ADDL.SESSIONS COURT (ADHOC)-II, ALAPPUZHA DATED 28-10-2004

¶7

------------------

¶8

APPELLANT/ACCUSED :-

¶9

DASAN, S/O.DAMODARAN, ATTUKADAVIL VEEDU, KARUVATTA VADAKKU MURI, KARUVATTA.

¶10

BY ADVS.SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN

¶11

RESPONDENT/COMPLAINANT :-

¶12

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

¶13

BY SRI.SANTHOSH PETER, PUBLIC PROSECUTOR

¶14

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

CRL.A.No.1825/2004

-: 2 :-

JUDGMENT

This is an appeal, where the conviction and sentence under Section 55(g) of the Kerala Abkari Act (the Act) in S.C.643/2002 of the Court of Session, Alappuzha is under challenge. The accused therein faced trial before the learned Additional Sessions Judge (Adhoc)-II, Alappuzha on the allegation that when an excise team led by the Circle Inspector of Excise attached to the Excise Enforcement and Anti Narcotic Special Squad, Alappuzha conducted a search at the house No.X/668 of the accused at Karuvatta, he was found possessing huge quantity of wash meant for distillation of arrack. The Circle Inspector arrested the accused on the spot, and seized the quantity of wash. On the basis of the arrest and seizure, he registered a crime at the office of the Squad. Later, when the accused and the properties were produced at the Excise Range Office, Karthikappally, the Excise Inspector there re-registered the crime. The Excise Circle Inspector of the Haripad Excise Circle

¶19

CRL.A.No.1825/2004

¶20

-: 3 :-

¶21

conducted investigation, and he submitted final report in court.

¶22

The accused appeared before the learned trial Judge and pleaded not guilty to the charge framed against him. The prosecution examined seven

¶23

witnesses, and proved Exts.P1 to P8 documents in the trial court. The accused denied the incriminating circumstances, and projected a defence of total denial. He did not adduce any evidence in defence. The MO1 and MO2 properties were also identified during trial. On an appreciation of the evidence, the trial

¶24

court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for one year, and to pay a fine of Rs.1 lakh. Aggrieved by the judgment of conviction dated 28.10.2004, the accused has come up in appeal.

¶25

On hearing both sides, and on a perusal of

¶26

the materials, I find some serious illegalities and infirmities in this case, the benefit of which must go to the accused. Of the seven witnesses examined in

¶27

the trial court, PW2 is the Excise Circle Inspector,

¶28

CRL.A.No.1825/2004

¶29

who detected the offence, and initially registered the crime. PW6 is the Excise Inspector, who re-registered the crime, PW7 is the Circle Inspector, who conducted investigation, and PW3 is the Preventive Officer, who assisted the Detecting Officer. PW4 and PW5 examined as independent witnesses turned hostile. PW1 is the Secretary of the Karuvatta Grama Panchayat examined to prove the ownership certificate in the name of the

¶30

accused in respect of the house No.X/668 of the

¶31

Karuvatta Grama Panchayat. PW2 and PW3 have given evidence regarding the arrest of the accused, and the seizure of some contraband articles. The crucial question is whether the material found in the containers seized by the excise officials was identified as wash, as the prosecution would allege.

¶32

This Court has settled that the copy of the forwarding note produced in court must be proved in evidence, and it must contain the specimen of the seal affixed on the sample. No such forwarding note is seen proved in this case. The detection mahazar or the search list does not show what seal was affixed on

¶33

CRL.A.No.1825/2004

¶34

-: 5 :-

¶35

the sample. PW2 and PW3 have not stated what seal was affixed on the sample. Thus, there is nothing to identify the sample produced in court as the sample collected from the possession of the accused, and thus, there is nothing to show that the material contained in the sample, or in the containers produced in court was identified as wash. On this ground itself, the accused is entitled for acquittal.

¶36

This Court has consistently held in so many 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 SRO 234/1967, by which, different powers to discharge the functions under the Act were conferred on different categories of excise officials of the Regular Excise Wing. Excise officials attached to Special Squads like Excise Intelligence Squad, or Excise Enforcement and Anti Narcotic Special Squad were not given any power to

¶37

CRL.A.No.1825/2004

¶38

-: 6 :-

¶39

discharge any function under the Act as per the 1967 notification. Such categories of officers got powers under the Act to discharge the functions only in 2009 as per another notification issued by the Government as SRO 361/2009 dated 8.5.2009. The detection in this case was made much before the said notification. The detection in this case was made by an Excise Circle Inspector of the Special Squad, and the crime was also first registered by him. Thus, two very important functions under the Act were discharged by an incompetent excise official. This is a very serious infirmity affecting the whole prosecution case. This itself is sufficient for acquittal.

¶40

In the result, this appeal is allowed. The

¶41

conviction and sentence in S.C.643/2002 of the court below will stand set aside.

¶42

Sd/- P.UBAID JUDGE

¶43

//True copy//

¶44

P.A. To Judge

¶45

Jvt/24.1.2019

Dasan, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dasan, v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

V.I.Thankappan, Vs State of Kerala

Omanakuttan Vs S.I of Police, Paravoor

Shajimon Vs State of Kerala

Suresh Vs State of Kerala

Madhu Vs State of Kerala

Vishnu Prasad Vs State of Kerala