Criminal appeal against conviction for possession of arrack under Section 58 of Kerala Abkari Act. Court held accused entitled to acquittal due to non-proving of specimen seal and incompetence of special squad officers to perform statutory functions at the time.
Appellant acquitted of the offence under Section 58 of the Act; conviction and sentence set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941
CRL.A.No.739 of 2008
AGAINST THE ORDER/JUDGMENT IN SC 552/2007 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR DATED 24-03-2008
APPELLANT/ACCUSED:
ANANDAN, S/O VASU, PANDIYATH HOUSE, MAZHUVANCHERY DESOM, ERANELLUR VILLAGE.
BY ADVS. SRI.NAGARAJ NARAYANAN SMT.AMRITA JAYARAM SRI.C.U.SANGEETH SRI.SAIJO HASSAN
RESPONDENT/STATE:
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
SRI SANTHOSH PETER-SR PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.A.No.739 of 2008
-2-
J U D G M E N T
The appellant herein challenges the conviction and sentence against him under Section 58 of the Kerala Abkari Act (for short “the Act”) in S.C. No. 552 of 2007 of the Court of Session,
Thrissur. He faced trial before the learned Additional Sessions Judge (Adhoc-I), Thrissur, on the allegation that at about 7.30 p.m. on 03.12.2002, he was found possessing and carrying 10 litres of arrack in a plastic can. The offence was detected by an Excise Inspector of the Excise Enforcement and Anti Narcotic Special Squad, Thrissur. He arrested the accused on the spot, and seized the contraband article. On the basis of the arrest and seizure made by him, a crime was registered at the office of the said Squad by the Excise Circle Inspector of the Squad, and later, the occurrence report along with the properties was
CRL.A.No.739 of 2008
-3-
transferred to the Anthikkad Excise Range where a Preventive Officer re-registered the crime and occurrence report. He also produced the accused and the properties in court. Another Excise Inspector of the Squad conducted investigation, and submitted final report in court.
2. The accused appeared before the
learned trial Judge, and pleaded not guilty to the charge framed against him. Instead of framing charge under Section 8(2) of the Act, the charge was wrongly framed under Section 58 of the Act. The prosecution examined 6 witnesses, and proved Exts.P1 to P8 documents in the trial court. The MO1 and MO2 properties were also identified.
3. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C., and projected a defence of total denial. He did not adduce any oral evidence in defence, but
Ext.D1 was marked on his side.
CRL.A.No.739 of 2008
-4-
4. On an appreciation of the evidence,
the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for two years, and to pay a fine of Rs.1 lakh. Aggrieved by the judgment of conviction dated 24.03.2008, the accused has come up in appeal.
5. On hearing both sides, and on a perusal of the materials, I find serious illegalities and infirmities in this case.
6. PW1 is the Excise Inspector who detected the offence, and PW2 is the Preventive Officer who assisted him. PW3 is the Preventive Officer who re-registered the crime and occurrence report at the concerned Excise Range. PW4 and PW5 examined as attestors to the mahazar, turned hostile during trial. PW6 is the Excise Inspector who conducted investigation, and submitted final
CRL.A.No.739 of 2008
-5-
report in court.
7. Of course, PW1 and PW2 have given
evidence regarding the arrest of the accused, and the seizure of a plastic can of 10 litres containing some liquid. This Court has settled that the copy of the forwarding note produced in the case must be proved in evidence, and it must contain the specimen of the seal affixed on the sample. No such specimen is seen in Ext.P6 copy of the forwarding note. It is not known how the sample was identified. I find that there is nothing to identify the sample produced in court as the sampled collected from the accused. On this ground itself, the accused is entitled for acquittal.
8. 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 by the Government as Abkari Officers under Section 4 of
CRL.A.No.739 of 2008
-6-
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 categories of excise officials of the regular excise wing. Excise Officials attached to the special squads like the Excise Intelligence Squad and the Excise Enforcement and Anti-Narcotic Special Squad were not given powers to discharge functions under the Act as per the said notification. Such categories of officers got powers under the Act only in 2009 as per the notification issued as S.R.O. No. 361/2009 dated 08.05.2009, in suppression of the earlier notification of 1967. The detection in this case was made by an Excise Inspector of the Special Squad, and another Excise Inspector of the same squad conducted investigation, and submitted final
report. The crime and occurrence report was initially registered by a Circle Inspector of the
CRL.A.No.739 of 2008
-7-
Squad, who was not competent to register crimes, and the crime was re-registered at the Excise Range Office by a Preventive Officer, who was also not competent at that time to register crimes under the Act. Thus, I find that every function in this case was discharged by incompetent Excise Officials. Without authority under the law, officers of the Special Squad detected the offence, registered the crime initially, conducted investigation, and even submitted final report in court. This is clear illegality vitiating the whole prosecution, and the benefit of all these illegalities and infirmities must go to the accused by way of acquittal.
In the result, the appeal is allowed. The appellant is found not guilty of the offence under 58 of the Act, and he is acquitted of the offence in appeal under Section 386(b)(i) Cr.P.C.. Accordingly, the conviction and sentence against the appellant in S.C. No. 552 of 2007 of the court
CRL.A.No.739 of 2008
-8-
below will stand set aside, and he will stand
released from the prosecution.
Sd/-
P.UBAID
Ds 09.07.2019 JUDGE
3 issues framed by the court
Whether the conviction and sentence for possession of arrack stand good despite allegations of procedural illegality.
Whether specimen seal of seized contraband was proven in evidence as required by law.
Whether special squad officers were competent to detect offence and register crime under the Act at the time.
3 provisions across 2 enactments
ANANDAN, S/O VASU
STATE OF KERALA
P.UBAID
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
