This criminal appeal challenges a conviction and sentence for possession of contraband under the Kerala Abkari Act. The High Court found illegalities regarding the seizure process and territorial jurisdiction of officers, leading to the appellant's acquittal.
Appellant found not guilty and acquitted. Conviction and sentence set aside. Released from prosecution.
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
FRIDAY ,THE 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940
CRL.A.No. 921 of 2007
AGAINST THE JUDGMENT IN SC 623/2005 of ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM
APPELLANT/ACCUSED:
CHACKO S/O. ETTAR, AGED 54 YEARS, THANDATHU VEEDU, MOSKOKKUNNU DESOM,, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK,, ERNAKULAM DISTRICT.
BY ADVS. SRI.T.D.ROBIN SRI.LEAN JOSE.P
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA
SRI SANTHOSH PETER (PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.A.No. 921 of 2007
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JUDGMENT
The appellant herein challenges the conviction and sentence against him under Section 55 (g) of the Kerala Abkari Act (“the Act”) in S.C. No. 623/2005 of the Court of Session, Ernakulam. He faced trial before the learned Additional Sessions Judge (Adhoc-I), Ernakulam on the allegation that when a team of Excise officials led by the Circle Inspector of Excise, Kunnathunad conducted a search at the House No. X/291 of the accused in the Rayamangalam Grama Panchayat on the basis of a secret reliable information, the accused was found possessing huge quantity of wash contained in two aluminium pots and two plastic cans. The Excise Circle Inspector arrested the accused on the spot, and seized the contraband articles as per a mahazar and a search list. On the basis of the arrest and the seizure made by the Circle Inspector of Excise, the Excise Inspector of the Perumbavoor Excise Range registered the crime and occurrence report, and he also produced the accused and the properties in court on the next day. As authorised by the Assistant Commissioner of Excise, the Circle Inspector of Excise, Kothamangalam conducted investigation and he submitted the final report in court also.
CRL.A.No. 921 of 2007
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pleaded not guilty to the charge framed against him. The prosecution examined seven witnesses, and proved Exts. P1 to P11 documents in the trial court. The MO1 to MO4 properties were also identified during trial. The accused projected a defence of total denial during trial. He did not adduce any oral evidence in defence, but Exts. D1 and D2 were marked.
5 Of the seven witnesses examined in the trial court, PW1 is the Circle Inspector of Excise who detected the offence, and PW7 is the Circle Inspector of Excise who conducted investigation. The crime and occurrence report was registered by PW2, the Excise Inspector of the Kothamangalam Excise Range. The detection was made within the Kothamangalam Excise Range and the Excise Inspector was also
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present there at the time of detection. PW6 is only the Village Officer who prepared the Ext.P10 scene plan and PW5 is the Secretary of the Rayamangalam Grama Panchayat examined to prove the Ext. P9 ownership certificate in the name of the accused, relating to the House No. X/291. The Circle Inspector who detected the offence, and the Excise Inspector who assisted him have given evidence proving the arrest of the accused at his house and the seizure of huge quantity of something alleged to be wash contained in some large containers like aluminum vessels and plastic cans. The crucial question is whether the material contained in these four containers was identified as wash as the prosecution would allege.
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affix his personal seal on the sample and other items. Such personal seal is absolutely necessary to identify the properties including sample. PW1 has no case that he had affixed his personal seal and he does not say what seal was affixed by him. Thus there is absolutely nothing to identify the sample produced in court as the sample collected from the possession of the accused that there is nothing to show that the material contained in the containers produced in the court was identified as wash. On this ground itself the accused is entitled for acquittal.
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discharge of other functions than detection beyond the territorial limits of Abkari Officers. The notification of 1967 was superseded by another notification of 2009. The detection in this case was made in 2004. As regards the application of the proviso to the 1967 notification also, this Court has settled that discharge of other functions than detection will not get the protection of the proviso.
CRL.A.No. 921 of 2007
circumstances and also illegalities vitiating the prosecution case. The benefit of all these must go to the accused.
In the result, this appeal is allowed. The appellant is found not guilty of the offence alleged against him under Section 55(g)of the Act, and he is acquitted of the said offence in appeal. Accordingly, the conviction and sentence against him in SC 623/2005 of the court below will stand set aside, and the appellant will stand released from
prosecution.
Sd/-
P.UBAID JUDGE
sru
3 issues framed by the court
Whether the prosecution is legally maintainable given the absence of specimens of seal on seized samples in the forwarding note and detection mahazar.
Whether an officer beyond territorial limits can investigate the case based solely on superior authorization rather than a government notification under Section 4.
Whether the infirmities in evidence collection authorize the acquittal of the accused.
2 provisions across 1 enactments
CHACKO S/O. ETTAR
STATE OF KERALA
P. UBAID
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
