Allowed

Anil Kumar v. State of Kerala

Kerala HC10 Mar 2021CRL.A/140/2008

Case brief

AI extract

What is this about?

The Kerala High Court set aside a conviction and sentence for offences under the Abkari Act and Rules. The Court held that the prosecution failed because the Preventive Officer who detected the offence lacked jurisdiction in the area where the seizure occurred, as he was not empowered to exercise powers beyond his range without Government notification. The appeal was allowed, the accused set at li

What did the court decide?

The impugned judgment dated 26.12.2007 set aside, accused set at liberty, bail bonds cancelled, and fine deposited pursuant to interim order returned upon proper application.

Anil Kumar Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2021)

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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 T.R.RAVI

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WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942

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CRL.A.No.140 OF 2008

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AGAINST THE JUDGMENT IN SC.NO.306/2005 DATED 26-12-2007 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA

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APPELLANTS/ACCUSED 1 TO 3:

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1 ANIL KUMAR S/O.CHIDAMBARAN, AALANGAD, THEKKE KALPATHI, NEERIKODU PO, ERNAKULAM.

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2 SREENIVASAN, S/.O.KUMARAN KARIMALLOOR, ADUKKALACHIRA, ERNAKULAM.

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3 RAKESH , S/O.SADAN THUNDIYIL HOUSE, KARIMALLOOR PO, ERNAKULAM.

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BY ADVS. SRI.M.RAVIKRISHNAN SRI.P.VIJAYABHANU

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RESPONDENT/COMPLAINANT:

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

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BY SMT. SYLAJA, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

CRL.A.No.140 OF 2008

JUDGMENT

Dated this the 10^th day of March 2021

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The accused in SC.No.306/2005 on the file of the Additional District and Sessions Judge, Vadakara have filed this appeal challenging the judgment dated 26.12.2007 whereby they were found guilty of offences under section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.3,000/each and in default of payment of fine, to undergo rigorous imprisonment for a further period of six months.

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The case of the prosecution is that on 20.05.2005 at about 12.45 p.m, the accused were found in possession of 35 bottles each containing 750 ml and 35 bottles each containing 375 ml of foreign liquor, which was being transported in a bus bearing registration No.KL-10C/9306. The offence was detected by PW1, who was the Preventive Officer of the Excise Range, Koyilandi. Even though, he was an Excise Officer of Koyilandi Range, he has stated in his evidence that he had been sent for duty at Azhiyoor check post on the direction of the Assistant Excise Commissioner and that the Excise party at 12.30 p.m stopped the bus named

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CRL.A.No.140 OF 2008

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'National Bus' coming from 'Thalassery' and proceeding to 'Kozhikkode', in which the accused were traveling and found to be in possession of the contraband articles. The labels in the bottles stated that those were for sale in Pondicherry only. On the basis of the evidence on record, the Court below found the accused guilty and imposed the sentence referred above.

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Heard Shri.M.Ravikrishnan, learned counsel for the appellant and Smt.Sylaja, learned Public Prosecutor on behalf of the State.

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The main contention advanced by the learned counsel for the appellant is that the entire prosecution has to fail for want of authority in PW1 who detected the offence. The counsel submits that admittedly PW1 who had detected the offence and had seized the articles and arrested the accused, was the Preventive Officer attached to the Excise Range, Koyilandi and he did not have jurisdiction over the Azhiyoor check post area, which comes under the jurisdiction of the Vadakara Excise Range. The counsel contends that Abkari officers who are exercising their powers under Sections 40 to 53 of the Abkari Act are empowered to act only within their jurisdiction. The counsel relies on the the judgment of this Court in Haridas v. State of Kerala [2015 (1) KLT 958] ,

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CRL.A.No.140 OF 2008

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wherein this Court had held that the Assistant Excise Commissioner had no Authority to empower an Abkari Officer to exercise the powers under Sections 40 to 53 in an area beyond his jurisdiction and that such a conferment can only be by notification issued by the Government of Kerala. Similar view has been expressed in several other judgments of this Court. I find considerable force in the arguments advanced by the counsel for the appellant. Admittedly, PW1 who had conducted the search of the vehicle and seized the contraband articles and arrested and detained the accused did not have jurisdiction at Azhiyoor area and since all the above actions have been taken by an officer who is incompetent and did not have jurisdiction, the entire prosecution has to fail since the Court below could neither have convicted nor acquitted the accused for want of jurisdiction.

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In the above circumstances, the judgment dated 26.12.2007 in SC.No.306/2005 on the file of the Additional District and Sessions Judge, Vadakara is set aside. The accused are set at liberty. Bail bonds if any executed by the appellants are cancelled. The fine amount if any, deposited by them pursuant to the interim order passed by this Court for suspending sentence will be returned to them on proper application being filed before

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CRL.A.No.140 OF 2008

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the Court below . The appeal stands allowed.

Sd/-

T.R.RAVI

JUDGE

Anil Kumar v. State of Kerala

Case brief

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Anil Kumar v. State of Kerala

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