Allowed

Suresh Babu v. State of Kerala

Kerala HC28 Jan 2019CRL.A/624/2006

Case brief

AI extract

What is this about?

Criminal Appeal against conviction under the Kerala Abkari Act for possessing arrack. This court allowed the appeal and acquitted the appellant finding infirmities including registration of crime by an unauthorized officer, lack of seal specimen proving sample identity, and delayed forensic analysis.

What did the court decide?

Appellant acquitted; conviction and sentence set aside; appellant released from prosecution.

Suresh Babu 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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MONDAY ,THE 28TH DAY OF JANUARY 2019 / 8TH MAGHA, 1940

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CRL.A.No. 624 of 2006

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AGAINST THE JUDGMENT IN SC 34/2005 of ADDITIONAL SESSIONS COURT (ADHOC)I, PALAKKAD

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APPELLANT/ACCUSED:

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SURESH BABU, S/O.NANU, KUNDUPURATH, THEKKUMMMURI DESOM, CHERPULASSERY VILLAGE, OTTAPPALAM TALUK.

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BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE

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RESPONDENT/COMPLAINANT

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STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, REPRESENTING THE EXCISE RANGE OFFICER, EXCISE RANGE OFFICE, CHERPULASSERY.

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SRI SANTHOSH PETER-PP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.A.No. 624 of 2006

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JUDGMENT

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The appellant herein challenges the conviction

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and sentence against him under Section 55(a) of the

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Act ('the Act' for short) in S.C 34/2005 of the Court of Session, Palakkad. He faced trial before the learned Additional Sessions Judge (Adhoc) I, Palakkad on the allegation that at about 11.30 a.m on 12.8.1999, he was found possessing three litres of arrack in a plastic can of 5 litres capacity on the public road in front of his house at Cherpulassery.

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The offence was detected by a Preventive

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Officer of the Cherpulassery Excise Range. He

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arrested the accused on the spot and seized the

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plastic can allegedly containing arrack. On the basis of the arrest and seizure, the Preventive Officer himself registered the crime and occurrence

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report. The Excise Inspector conducted

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investigation and submitted final report in court. 3. The accused appeared before the learned

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CRL.A.No. 624 of 2006

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trial Judge and pleaded not guilty to the charge framed against him. The detection was made after the coming into force of Section 8 of the Act. Instead of framing charge under Section 8(2) of the Act, the charge was wrongly framed under Section 55(a) of the Act. The prosecution examined five witnesses and proved Exts.P1 to P7 documents in the trial court. The MO1 property was also identified during trial. The accused projected a defence of total denial. He did not adduce any

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evidence in defence.

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On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for one year, and to pay a fine of ₹1,00,000/- by judgment dated 7.2.2006. Aggrieved

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by the judgment of conviction, 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 infirmities in this case, the benefit of which must go to the accused.

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CRL.A.No. 624 of 2006

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Of the five witnesses, PW1 is the Preventive

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Officer who detected the offence and PW2 is the Preventive Officer who assisted PW1 in the

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detection process. PW3 and PW4 examined as

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independent witnesses turned hostile. PW5 is the Excise Inspector who formally investigated the case and submitted final report. The crime and

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occurrence report was also registered by PW1.

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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 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 234/1967 by which different powers were conferred on different

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categories of Excise Officials. Of course, Preventive Officers were authorised to detect

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offences, but they were not authorised to register crimes under the Act. PW1 who detected the offence

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has no excuse or explanation why he himself

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CRL.A.No. 624 of 2006

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registered the Ext.P3 occurrence report. Even as

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the person in charge of the Excise Inspector, he

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cannot register crimes because discharge of

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different functions will have to be specifically authorised in favour of different categories by the Government. Of course, as the officer in charge of the Inspector, the Preventive Officer can discharge other functions including administrative matters. A case built on a crime registered by an incompetent officer must collapse.

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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. Of course, PW1 and PW2 have given evidence regarding the arrest of the accused and the seizure of a plastic can. The crucial question is whether the liquid therein was identified as arrack. PW1 does not say what

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seal was affixed by him on the sample. He does not say that the specimen provided in the forwarding

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note is the specimen of the seal affixed on the

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CRL.A.No. 624 of 2006

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sample. The mahazar also does not contain the

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specimen of the seal. In short, there is nothing authentic to identify the sample produced in court as the sample seized from the possession of the accused. Practically, there is nothing to show that the liquid in MO1 was identified as arrack.

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Of course, the property list shows that the

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properties were produced in court without delay.

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But the report of analysis shows that the sample

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was forwarded for analysis after four months.

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Nobody has got any explanation for this. This is

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also an infirmity or suspicious circumstances in

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favour of the accused. Even otherwise, I find on

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legal aspects that the accused is entitled for

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acquittal, because the crime was registered by an incompetent officer.

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In the result, this appeal is allowed. The

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appellant is found not guilty of the offence under Section 55(a) of the Kerala Abkari Act, and he is

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acquitted of the said offence in appeal.

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Accordingly, the conviction and sentence against

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CRL.A.No. 624 of 2006

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him in S.C 34/2005 of the court below is set aside and the appellant will stand released from

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prosecution.

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Sd/P.UBAID ma /True copy/ JUDGE P.S to Judge

Suresh Babu v. State of Kerala

Case brief

What is this about?

What did the court decide?

Suresh Babu v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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