Allowed

Ganesan,S/O. Ramayya, v. State of Kerala

Kerala HC12 Feb 2020CRL.A/664/2007

Case brief

AI extract

What is this about?

The High Court overturned the conviction of an appellant accused of manufacturing arrack. Holding that Assistant Sub-Inspectors lack independent authority to conduct abkari investigations under Section 4, the Court flagged illegal search and seizure, unexplained procedural delays, and missing documentation as fatal flaws requiring reversal.

What did the court decide?

The judgment of the trial court is reversed, the bail bond is cancelled, and the accused is set at liberty.

Ganesan,S/O. Ramayya, Vs State of Kerala — Narcotics (NDPS) | 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 MRS. JUSTICE MARY JOSEPH

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WEDNESDAY, THE 12TH DAY OF FEBRUARY 2020 / 23RD MAGHA, 1941

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CRL.A.No.664 OF 2007

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AGAINST THE JUDGMENT DATED 28.03.2007 IN S.C.NO.624/2002 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE (ABKARI CASES), KOTTARAKKARA

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APPELLANT/ACCUSED:

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GANESAN, S/O. RAMAYYA, QUARTERS NO.12, RPL 2-H COLONY, KULATHUPUZHA MURI,, KULATHUPUZHA VILLAGE, KOLLAM DISTRICT.

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BY ADVS. SRI.K.V.ANIL KUMAR SRI.MOHANAN M.K

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RESPONDENT/COMPLAINANT:

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

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BY SRI B.JAYASURYA, SR.PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.664 OF 2007 2

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JUDGMENT

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Dated this, the 12^th day of February, 2020

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This appeal is directed against judgment dated 28.03.2007 of Additional Sessions Judge (Abkari Cases), Kottarakkara (for short 'the trial court') in S.C.No.624 of 2002.

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The appellant is the sole accused in the case. He was found guilty by the trial court and convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for three more months. Aggrieved thereby the accused is before this Court in the appeal on hand.

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The facts of the case are briefly stated hereunder :

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On 03.09.2000 at 4.15 p.m., while the Assistant Sub Inspector of Police and his party were patrolling, they were informed about manufacture of arrack near RPL 2H Colony, Kulathupuzha. They proceeded to the place and found four white Jerry Cans kept conceded in rocks and bushes. The accused was also found there. The Cans were found to contain Wash of about 160 liters (40 liters in each Can) and those were seized. The accused was arrested then and there. The accused along with the properties seized were brought to the police station and Crime No.252 of 2000 was

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registered alleging commission of an offence punishable under Section 55(g) of the Abkari Act (for short 'the Act'). The Sub Inspector of Police, Kulathupuzha conducted investigation in the case. After concluding the same, final report was laid before Judicial First Class Magistrate Court I, Punalur, chargesheeting the petitioner for the above offence. On noticing from the Final Report that the offence alleged is triable by Court of Sessions, it was committed to Court of Sessions, Kollam. The case then was made over to Assistant Sessions Court, Kottarakkara for trial. The accused entered appearance before the court on process being served. After a preliminary hearing charge was framed against him under Section 55(g) of the Act. The charge was read over and explained to the accused. He pleaded not guilty and therefore, the trial was held.

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On the side of the prosecution, PWs 1 to 5 were examined and Exts.P1 to P6 and M.O. I were marked. On closure of the prosecution evidence, the accused has examined under Section 313 (1)(b) Cr.P.C. All questions of incriminating nature put were denied by the accused and pleaded false implication. Grounds having not been made out to record an order of acquittal, he was called upon to enter on his defence. But, he did not adduce any evidence.

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The trial court has appreciated the evidence adduced by the prosecution and the defence and arrived at a finding of guilt of the accused for the offence punishable under Section 55(g) of the

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CRL.A.No.664 OF 2007 4

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Act. Accordingly he was convicted and sentenced to undergo punishment as aforesaid. Being aggrieved by, the present appeal was filed.

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Sri.Mohanan M.K, the learned counsel for the appellant has contended that the trial court failed in appreciating the evidence in its proper perspective. According to him, the offence alleged was detected and the search and seizure were conducted by the Assistant Sub Inspector of Police, Kulathupuzha, who is not an officer empowered to act as Abkari Officer under Section 4 of the Act. According to him, the trial court though was apprised by the accused's counsel of the factum, it failed to consider that. The contention secondly advanced by the learned counsel was that the properties seized from the spot were produced before the court with a delay of 13 days. According to him, after the seizure of the properties on 03.09.2000, those were produced before the court only on 16.09.2000. A delay of 13 days was occurred but the investigating officer examined as PW5 failed to furnish any cogent explanation for the same. It is urged by the learned counsel that the delay that occurred being extensive and unexplained is fatal and would defeat the prosecution case. It was contended thirdly by the learned counsel that only a single sample was drawn from the contraband at the spot whereas the Act requires drawal of two samples at least.

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It is further contended that forwarding note is not forthcoming in evidence. According to the learned counsel, non production of forwarding note in evidence by the prosecution is fatal. According to him, the specific case of the prosecution was that the accused was arrested from his house. The official witnesses examined by the prosecution also deposed accordingly. But the specific case of the accused while being examined as DW1 was that he was arrested from RPL 2-H colony. According to the learned counsel since the accused himself mounted the box and claimed that he was arrested from a Colony a doubt is created as to the place of his arrest. Raising contentions as above, the learned counsel canvassed for reversal of the judgment under challenge.

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The learned Public Prosecutor has contended on the contrary that the trial court has appreciated the evidence before it in the proper perspective and absolutely a ground calling for interference does not exist. According to the learned Public Prosecutor none of the contentions raised by the learned counsel for the defence is sustainable and therefore the judgment under challenge deserves to be confirmed.

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As per Section 4 of the Act, the State Government is empowered to issue a Notification in the Official Gazette to appoint officers to perform the acts and duties under Sections 40 to 53 inclusive of the Act. In exercise of the said power a Notification was

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CRL.A.No.664 OF 2007 6

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issued by the State Government as SRO No.321/1996, which reads:-

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“ S.R.O.No.321/96.- In exercise of the powers conferred by section 4 of the Abkari Act, I 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 the 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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10. It is clear from the above that all police officers of and

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above the rank of the Sub Inspector of Police in charge of Law and Order and working in the General Executive Branch of the Police Department are empowered to exercise powers envisaged under 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 discharge all the duties conferred and imposed on Abkari Officers, in those Sections. Therefore, as per the Notification all duties ascribed under the provisions referred to in the Notification shall be performed by all police officers of and above the rank of Sub Inspector of Police. In the case on hand, detection, search, seizure and the requisite associated formalities have been done by the Assistant Sub Inspector of Police, Kulathupuzha. Indisputably, the Assistant Sub Inspector of Police is subordinate to the Sub Inspector of Police. Therefore, the officer who has detected the offence and conducted search and seizure of the

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CRL.A.No.664 OF 2007 7

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contraband in the case on hand being an Assistant Sub Inspector, he is not competent to perform the duties enumerated under Sections 31 to 38, Section 40 to 53 and Section 59 of the Act. Therefore, the detection, search and seizure conducted by him will be illegal, for those not being done by an officer empowered by the Government to act as an Abkari Officer.

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It is contended by the learned counsel that at least two samples must be drawn from the contraband and any failure to do so will be a factor to vitiate trial. But, he failed to put to notice any legal provision or any authoritative pronouncement in that regard, by which the law on the point is settled. This Court has no hesitation to hold that the submission made by the learned counsel does not hold merits. Nowhere in the Act, a provision insisting for preparation of more samples than one is there. It is true that the Abkari Manual directs so. But, the directives therein cannot be taken to have the force of law as those are issued for compliance intra-departmentally. In the context, the submission of the learned counsel that failure to draw more than one sample would be fatal to prosecution is discarded.

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A glance at the property list marked in evidence in the case on hand as Ext.P2 would reveal that though properties were seized on 03.09.2000, the same reached the court only on 16.09.2000. Therefore, as rightly pointed out by the learned counsel a delay of 13

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days was occurred. The delay if explained with a cogent reason, would have no serious impact on the prosecution case. This Court had a glance at the evidence tendered by the investigating officer in the case on hand and found that explanation was not offered for the delay. In the case on hand, Ext.P1 seizure mahazer does not mention about affixtures of sample seal by the detecting officer on the properties seized from the spot. Forwarding note is not forthcoming in evidence. In the context, the report of the Chemical Examiner in Ext.P3 that in his/her verification, seal on the sample was found in tact and tallied with the sample seal provided is liable to create some doubt in the mind of the court regarding identification. If the forwarding note was not prepared and forwarded, it is unlikely for the Chemical Examiner to have any idea about the sample seal impressed on the contraband and the sample from the spot. In the case on hand even in Ext.P1 seizure mahazar prepared from the spot there is no description that sample seal was affixed on the contraband. The forwarding note was also not produced. Since the forwarding note incorporates in it a space for affixture of sample seal, its production and marking in evidence would have facilitated identification of the sample received by the chemical examiner for analysis, easier. Evidence is also silent about the officer who has been in custody of the properties for the delayed period. Where evidence on those aspects is totally lacking, the prosecution case can only be viewed with some suspicion.

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CRL.A.No.664 OF 2007 9

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The argument lastly advanced by the learned counsel was about the place of arrest of the accused. It is contended by the learned counsel that when the accused mounted the box and deposed as DW1, his arrest was spoken as made from a colony. But, the specific say of the official witnesses examined by the prosecution was that the accused was arrested from his own house. When the official witnesses corroborate while deposing that the accused was arrested from his house, the presumption under Section 114 Indian Evidence Act, 1872 would come for their rescue. In that context, the argument of learned counsel dehors merits and therefore is discarded.

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The conduct of search and seizure being not by an Abkari Officer, itself is a serious flow to vitiate trial. Apart from the above, several other flaws have also been discussed with. Therefore, the appeal is liable to fail. The very foundation of the prosecution case is lost and in the above circumstances, the judgment under challenge is liable to be reversed.

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In the result, the appeal is allowed. The judgment under challenge is reversed. The bail bond is cancelled and the accused is set at liberty.

Sd/-

MARY JOSEPH

JUDGE

NAB/ttb

CRL.A.No.664 OF 2007 10

Ganesan,S/O. Ramayya, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Ganesan,S/O. Ramayya, v. State of Kerala

Case brief

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What did the court decide?

What the court decided

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