Allowed

V.K.Rajan v. State of Kerala

Kerala HC17 Jul 2019CRL.A/2782/2008

Case brief

AI extract

What is this about?

The Court allowed the appeal, acquitting the appellant convicted under the Abkari Act. The judgment held that the investigation by an Assistant Excise Inspector was unauthorized as they lacked jurisdiction prior to 2009. Additionally, the absence of a seal on the forwarding note copy precluded proof that the analyzed sample was the seized contraband.

What did the court decide?

Conviction and sentence set aside; appellant acquitted. Bail bond discharged.

V.K.Rajan Vs State of Kerala — Cheque Dishonour | 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 B.SUDHEENDRA KUMAR

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WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941

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CRL.A.No.2782 of 2008

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AGAINST THE ORDER/JUDGMENT IN SC 790/2006 of ADDITIONAL SESSIONS COURT (ADHOC)-II, THALASSERY DATED 21-10-2008

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AGAINST THE ORDER/JUDGMENT IN CR 16/2005 of JUDICIAL MAGISTRATE OF FIRST CLASS ,MATTANNUR

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APPELLANT/S:

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V.K.RAJAN

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S/O VANNATHIKUNNIL VEETIL KUNHAMBU, AGED 50 YEARS, COOLIE,, KEEZHALLUR AMSOM, KOTHERI DESOM, THALASSERY TALUK.

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BY ADVS.

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SRI.C.P.PEETHAMBARAN SRI.M.X.ANTONY LIJO

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RESPONDENT/S:

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

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OTHER PRESENT:

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SRI.E.C.BINEESH,PP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Case No. Crl.A 2782/08

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JUDGMENT

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The appellant was convicted and sentenced by the

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court below under Section 8(2) of the Abkari Act.

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The prosecution allegation is that on 28.7.2005 at about 2.45 p.m., the appellant was found in possession of 16 litres of arrack, in contravention of the provisions of the Abkari Act.

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Heard.

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The learned counsel for the appellant has argued

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that since the Assistant Excise Inspector had conducted the investigation, the appellant is entitled to benefit of doubt. It has been further argued by the learned counsel for the appellant that since no seal was affixed in the copy of the

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Case No. Crl.A 2782/08

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forwarding note, the appellant is entitled to benefit of doubt

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on that reason also. The learned counsel relied on the decision of this court in Krishnan H. v. State [2015(1) KHC 822] to buttress her argument.

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PW6 was the Assistant Excise Inspector, who conducted the investigation in this case. The evidence of PW5, who was the Excise Inspector, who filed the final report, would also show that PW6 had conducted the entire investigation in this case. PW6 was only an Assistant Excise Inspector during the relevant period. This Court in Subrahmaniyan v. State of Kerala [2010 (2) KHC 552] held that the Assistant Excise Inspector was not a competent and authorised Officer under the Abkari Act, especially under Sections 4(d) and 70 of the Abkari Act as

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Case No. Crl.A 2782/08

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per S.R.O. No.234/1967 and hence, the seizure and arrest

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made by the Assistant Excise Inspector were without authorisation and jurisdiction.

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The court in Sasidharan v. State of Kerala [2012 (2)

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KLT 392] quoted the decision in Subrahmaniyan (supra) with approval and held that the Assistant Excise Inspectors were not empowered under the Abkari Act prior to 8.5.2009 to perform the duties under Sections 31, 32, 34, 35 and 38

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to 53 of the Abkari Act.

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In this case, the incident was on 28.7.2005.

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Therefore, there can be no dispute that the Assistant Excise Inspector was not an Abkari Officer during the relevant period. Since PW6 was only an Assistant Excise Inspector, who was not an Abkari Officer, the investigation

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Case No. Crl.A 2782/08

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conducted by PW6 was without jurisdiction and authorisation and in the said circumstances, the conviction

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and sentence passed by the court below on the basis of the final report filed on the basis of the investigation conducted by PW6 cannot be sustained.

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Ext.P6 is the copy of the Forwarding Note. It

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appears that Ext.P6 does not contain the seal of the Excise Inspector at the space provided for the same. In Krishnan H(supra), this Court held that the absence of sample seal at

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the space provided for the same in the copy of the Forwarding Note is sufficient reason for presuming that the sample seal was not provided on the original Forwarding Note. In this case, the sample seal was not affixed on Ext.P6 copy of the Forwarding Note. No evidence was also

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Case No. Crl.A 2782/08

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adduced by the prosecution to prove that the sample seal was affixed on the original forwarding note. In the said circumstances, it has to be held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. Consequently, there cannot be any guarantee that the sample produced before the court and analysed in the laboratory was the sample drawn from the contraband seized from the appellant. In the said circumstances, there is no link evidence connecting the appellant with the sample analysed in the laboratory. Consequently, the conviction and sentence passed by the court below, relying on Ext.P7 Certificate of Chemical Analysis cannot be sustained.

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In the result, this appeal stands allowed, setting aside

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Case No. Crl.A 2782/08

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the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged.

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B. SUDHEENDRA KUMAR, JUDGE .

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dl/

V.K.Rajan v. State of Kerala

Case brief

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V.K.Rajan v. State of Kerala

Case brief

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