Allowed

Sunil Kumar and 2 Others v. State of Kerala

Kerala HC9 Dec 2020CRL.A/263/2007

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal against conviction under Section 55(a) of the Kerala Abkari Act. The court acquitted three appellants due to the Detecting Officer's lack of jurisdiction, failure to prove possession beyond reasonable doubt, custody gaps in seized articles, and significant contradictions in prosecution evidence regarding timelines and identification.

What did the court decide?

The conviction and sentence are set aside; the accused are acquitted; bail bonds are cancelled; and fines are refunded.

Sunil Kumar and 2 Others Vs State of Kerala — Cheque Dishonour | Kerala HC (2020)

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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 BECHU KURIAN THOMAS

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WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942

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CRL.A.No.263 OF 2007

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AGAINST THE JUDGMENT DATED 22-12-2006 IN SC 2/2002 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KALPETTA

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APPELLANTS/ ACCUSED 1, 2 & 3 :

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1 SUNIL KUMAR,

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S/O. GANGADHARAN, PANAMTHARA, PERIYA P.O., MANANTHAVADY, WAYANADU DISTRICT.

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2 REENA, D/O. SANKARAN NAIR, PANAMTHARA, PERIYA P.O., MANANTHAVADY, WAYANADU DISTRICT.

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3 JANAKI, D/O. KUNHIKRISHNAN NAIR, PANAMTHARA, PERIYA P.O., MANANTHAVADY, WAYANADU DISTRICT.

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BY ADVS. SRI.S.M.PRASANTH DR.K.BALAKRISHNAN

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RESPONDENT :

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

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BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.263 OF 2007

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JUDGMENT

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Dated this the 9th day of December 2020

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Appellants challenge the conviction and sentence imposed on them in SC.No.2/2002 on the files of the Additional Sessions Court (Ad hoc) II, Kalpetta. By the impugned judgment, the accused have been found guilty for the offence under Section 55 (a) of the Kerala Abkari Act (for short, 'the Act'). The first appellant has been sentenced to undergo rigorous imprisonment for two years, while appellants 2 and 3 have been sentenced to undergo simple imprisonment for two years. All three appellants have been sentenced to a fine of Rs.1,00,000/- each, in default to undergo imprisonment for six months, rigorous for the first appellant and simple for appellants 2 and 3.

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The prosecution case was that on 27.04.2000, at around 5.30 p.m., the accused were found transporting 100 bottles of Indian made foreign liquor, which was permitted to be sold only in Pondichery State, thereby committing the offence under Section 55(a) of the Act.

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In order to prove the prosecution case, PWs 1 to 7 were examined and Exts.P1 to P6 were marked apart from material objects 1 and 2.

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CRL.A.No.263 OF 2007

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After analysing the facts and evidence adduced in the case, the learned Sessions Judge found the accused guilty and sentenced them to undergo imprisonment and to pay the fine as mentioned earlier in this judgment.

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Adv.S.M.Prasanth, appearing on behalf of the appellants submits that this is an offence that took place more than 20 years ago and evidence adduced by the prosecution is completely lacking to prove the guilt of the accused. He further submitted that the Detecting Officer, who was PW7 had no jurisdiction or authority to register a crime as per the Act. It was also pointed out that this is a case where the accused were not found in possession, but are assumed to be in possession on the basis of oral testimonies given by PWs 3, 4 and 5, whose evidence are not worthy of belief and who admittedly had some enmity against the accused, which makes their evidence not worthy of belief. It was also submitted that the sentence imposed upon the accused was also too harsh, considering the circumstances of the case. He further submitted that there was a delay of six days in transmitting the seized articles to the court and the said delay having not been explained, the accused was entitled to the benefit of doubt.

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The learned Government Pleader Smt.Rekha C.Nair, on

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CRL.A.No.263 OF 2007

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the other hand submitted that PW7 was in charge of the police station and he had clearly deposed before Court that on the said day, the Sub Inspector of Police, who was in charge of the police station had gone to High Court on duty and he was given charge of the police station which makes him entitled and authorised to detect and register the crime under the Act. She further pointed out that, the delay in transmitting the seized articles was only six days, which cannot be regarded as a delay at all and even otherwise the same was explained. It was also argued that the statements of PWs 3, 4 and 5 cannot be disbelieved as they had clearly stated that they were on the look out for the accused persons since the accused have been transporting liquor and they were aware about the repeated illegal activities for which they had decided to keep a watch. It was in such circumstances that they interrupted the accused while transporting liquor and also that there was no reason to disbelieve their versions.

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I have considered the rival contentions. It is true that this is an incident that had occurred more than two decades ago. However, that does not detract the culpability of the offence, if committed.

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As per SRO No.321/1996, all police officers above the rank of a Sub Inspector of Police in charge of law and order are

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CRL.A.No.263 OF 2007

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authorised to exercise the powers of an Abkari Officer as defined under Section 2(2) of the Act. For the purpose of easier reference, the Notification is extracted as below :

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"SRO No.321/96.- In exercise of the powers conferred by Section 4 of the Abkari Act, 1 of 1077 the Government of Kerala hereby appoint all Police Officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective jurisdiction for the purposes of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the Sections aforesaid.

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This notification shall come into force with immediate effect. (GO (P) No.69/96/TD dt.29/03/1996)."

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It is seen from the deposition of PW7 that he was only an Assistant Sub Inspector of Police and not an SI of Police authorised to detect or authorised to act as an Abkari Officer under the Act. Even though PW7 claims that he was on duty as the Sub Inspector of Police, since the SI had gone to the High Court on duty, there is nothing on record to prove that PW7 was put in charge of the police station or

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CRL.A.No.263 OF 2007

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given additional charge of a Sub Inspector of Police on 27.04.2000. The prosecution had failed to produce any record to prove that PW7 was conferred with the duty to act as a Sub Inspector of Police on the said day so as to be regarded as an Abkari Officer under the Act. In such circumstances, there is merit in the contention of the learned counsel for the appellant that PW7 was not authorised under the Act to detect an offence of this nature.

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Even if it is assumed for argument's sake that PW7 was authorised to act as an Abkari Officer, still it can be seen from the evidence of PW7 itself that there was nothing to prove that accused was in possession of the contraband material. Except for the oral evidence of PWs 3, 4 and 5, there is nothing to show that accused 1 to 3 had actually transported Indian made foreign liquor on 27.04.2000 through the public road.

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As per the deposition of PW7, on receiving information over phone that accused were detained by PW2 to PW4, while they were transporting 100 bottles of IMFL, when he reached the spot the accused were not there and instead PW2 to PW4 were standing there with two big shopper bags and two air bags. It was the statement of PW2 to PW4 that the accused ran away while they were detained. Thus, the contraband liquor was not seized from the possession of the

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CRL.A.No.263 OF 2007

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accused nor did PW7 find the contraband article under the dominion or control of the accused. PW7 was unable to state as to which accused possessed which bag and he had not even taken any steps to arrest the accused or search for the accused. He also stated that he received information about the accused detained by PW2 to PW4 by 5.00 p.m.on 27.04.2000. These contradictions are material.

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PW2 deposed that the accused were detained by them at 3.30 p.m.and immediately information was given to the police station. PW3 deposed that the accused were detained at 5.00 p.m.and the police came at 6.30 p.m. He asserted that none were detained at 3.30 p.m. PW4 on the other hand deposed that the contraband articles were detained by PW2 to PW4 at 3.30 p.m. and the police party reached the place at 5.00 p.m.

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Apart from the above, it is admitted that there was a delay in producing the seized contraband articles before the Court. Seizure was on 27.04.2000 while it was produced in court only on 03.05.2000. The delay of six days have not been explained by PW7. PW7 was not even able to explain as to who retained possession of the seized articles after its seizure till it was produced. The possibility of tampering with the seized articles cannot be ignored.

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The inconsistency in the prosecution evidence about

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CRL.A.No.263 OF 2007

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the time of receipt of information, failure to investigate as to when or how the accused ran away, failure to identify which accused was carrying which bag of contraband article, failure of the Detecting Officer to arrest the accused on the same day or to furnish any reasons for such failure, inability to account as to who retained the seized liquor till it was produced before the Magistrate, the delay in producing the seized liquor before court all of which stares at the prosecution. The prosecution has thoroughly failed to prove the guilt of the accused beyond reasonable doubt.

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When this Court is called upon to consider the culpability of an accused, it is essential that the prosecution must be able to satisfy the guilt of the accused beyond all reasonable doubt. Oral evidence adduced in the present case is not sufficient to prove the case beyond reasonable doubt. Even in the oral evidence adduced, there are contradictions in the evidence of PWs 3, 4 and 5, which stairs at the prosecution.

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On the aforesaid consideration of the evidence adduced and the facts emanating in the case, the prosecution miserably failed to prove the guilt of the accused. The accused are therefore entitled to be acquitted.

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Accordingly, the appeal is allowed and the conviction and

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CRL.A.No.263 OF 2007

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sentence imposed upon the appellants by judgment dated 22.12.2006 in SC No.2/2002 on the files of the Additional Sessions Court (Ad hoc) II, Kalpetta are set aside. The accused are acquitted. Bail bonds shall stand cancelled and the fine amount if already remitted shall be refunded.

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Sd/- BECHU KURIAN THOMAS, JUDGE

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RKM

Sunil Kumar and 2 Others v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sunil Kumar and 2 Others v. State of Kerala

Case brief

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What did the court decide?

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