Allowed

Kumari v. State of Kerala

Kerala HC25 Jan 2019CRL.A/2070/2006

Case brief

AI extract

What is this about?

Appellant appeals conviction for possessing arrack under Section 58 of the Kerala Abkari Act. The High Court allowed the appeal, holding the detection officer was incompetent and lacking statutory powers under Section 4. Further, no valid sample was collected due to lack of requisition and seal specimen, vitiating the prosecution.

What did the court decide?

Conviction and sentence set aside; appellant released from prosecution; bail bond discharged; deposited amount released.

Kumari Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2019)

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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 P.UBAID

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FRIDAY, THE 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940

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CRL.A.No. 2070 of 2006

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AGAINST THE JUDGMENT IN SC 608/2001 of ADDITIONAL SESSIONS COURT FOR THE TRIAL OF ABKARI ACT CASES, NEYYATTINKARA DATED 01.09.2006

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CP 233/2000 of JUDICIAL MAGISTRATE OF FIRST CLASS -II, NEYYATTINKARA

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APPELLANT/ACCUSED :

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KUMARI, D/O.OMANA, MOTTAVILA PUTHENVEEDU, KEEZHKOLLA DESOM,, CHENKAL VILLAGE, NEYYATTINKARA TALUK.

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BY ADV. SRI.BLAZE K.JOSE

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RESPONDENT/COMPLAINANT :

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THE STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, AMARAVILA EXCISE RANGE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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OTHER PRESENT:

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SRI SANTHOSH PETER-PP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.A.No. 2070 of 2006

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JUDGMENT

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The appellant herein challenges the conviction and sentence against her under Section 58 of the Kerala Abkari Act (“the Act”) in S.C.No.608 of 2001 of the Special Additional Sessions Court for the trial of Abkari Act cases, Neyyattinkara.

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She faced trial on the allegation that at about 12 noon on 29.12.1997, she was found possessing 4.5 litres of arrack in a plastic can of 5 litres capacity at the side of the public road near her house. The offence was detected by an Excise Inspector of the Excise Control Room Squad, Thiruvananthapuram. He arrested the accused on the spot, and seized a plastic can allegedly containing arrack. He produced the accused and the properties at the Amaravila Excise Range Office where the Excise Inspector registered the crime and occurrence report. The said Inspector conducted initial investigation. Thereafter, another Inspector completed investigation, and submitted final report in Court.

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The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against her under Section 55(a) of the Act. The detection was after the coming

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CRL.A.No. 2070 of 2006

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to the force of Section 8 of the Act. Instead of framing charge under Section 8(2) of the Act, charge was wrongly framed under Section 55(a) of the Act. The prosecution examined six witnesses, and proved Exts.P1 to P7 documents in the trial court. The MO1 can was also identified during trial. The accused did not adduce any evidence in defence. She maintained a defence of total denial. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, she was sentenced to undergo rigorous imprisonment for two years, and to pay a fine of Rs.1,00,000/- (Rupees One lakh only). Aggrieved by the judgment of conviction dated 01.09.2006, the accused has come up in appeal.

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On hearing both sides, and on a perusal of the materials, I find some serious infirmities and illegalities in this case vitiating the whole prosecution. The detection in this case was made by an Excise Inspector of the Special Squad, and not any Officer of the regular Excise wing, or any Officer of the Amaravila Excise Range, within the limits of which the detection was made.

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This Court has consistently held in so many decisions that the functions under the Act can be discharged only by the Officers appointed as Abkari Officers by the Government

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CRL.A.No. 2070 of 2006

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under Section 4 of the Act. In terms of Section 4, a notification was issued by the Government of Kerala in 1967 as SRO 234/1967 by which different powers were conferred on different categories of Excise Officials of the regular Excise wing. Officers of Special Squads were not given any powers as per the said notification. Such categories got powers under the Act only in 2009 as per another notification issued by the Government on 08.09.2009 as SRO 361/2009, in suppression of the earlier notification. Thus, the detection in this case was made by an incompetent Excise Official.

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Admittedly, the detecting officer had not collected any sample from the quantity of arrack allegedly contained in the MO1 can. PW3 is the Excise Inspector who detected the offence, and PW2 is the Excise Inspector of the Excise Range who assisted PW3. It is not known why an Inspector of the Special Squad detected the offence when the Excise Inspector of the concerned Range was very much present there. When cross-examined regarding sample, PW3 stated that he had not collected any sample from the quantity of arrack. He further stated that sample was collected at the Court. It is not known who collected the sample, or how it was collected, or who authorised collection of sample at the Court. PW3 admitted that the seal on the lid of MO1

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CRL.A.No. 2070 of 2006

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is not the seal affixed by him at the time of detection. This means that there was clear tampering. The extract of the property register proved in evidence does not show that any sample was produced in Court. PW3 stated that he had filed a requisition in Court for taking sample. Such a requisition is not seen produced or proved. It is not known what seal was affixed on the sample, whoever collected it. This Court has settled that the copy of the forwarding note or requisition must be proved in evidence, and it must contain the specimen of the seal affixed on the sample. No such specimen is produced in Court. Thus, there is nothing to identify the sample sent for analysis, as the sample collected from the possession of the accused. In such a situation, the report of analysis will not bind the accused, and there is nothing to show that the liquid involved in this case was identified as arrack, as the prosecution would allege. This itself is a ground for acquittal. Even otherwise, I find that the whole prosecution is vitiated because, the essential function of detection was made by an incompetent officer.

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In the result, this appeal is allowed. The conviction and sentence against the appellant in S.C.No.608 of 2001 of the court below will stand set aside. The appellant will stand released from

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CRL.A.No. 2070 of 2006

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prosecution, and the bail bond executed by her will stand discharged. The amount, if any, deposited by the appellant in the court below as a condition for suspension of sentence will be released.

Sd/-

P.UBAID

JUDGE

rkj

Kumari v. State of Kerala

Case brief

What is this about?

What did the court decide?

Kumari v. State of Kerala

Case brief

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What did the court decide?

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