Appeal against conviction for illicit arrack possession. High Court acquitted appellant due to unexplained delay producing seized contraband, detecting officer's lack of statutory powers at the time, and absence of chemical analysis evidence.
Appellant acquitted of the offence and set at liberty.
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.
Crl.A No.1210 of 2007 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 1 S T DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944
CRL.A NO. 1210 OF 2007
AGAINST THE ORDER/JUDGMENTSC 193/2001 OF ADDITIONAL DISTRICT
COURT (ADHOC)-II, KALPETTA
APPELLANT/PETITIONER:
MANOJ KUMAR NOOLPUZHA, KALPETTA, WAYANAD.
BY ADVS. SRI.T.G.RAJENDRAN SRI.T.R.TARIN
RESPONDENTS:
REKHA -GOVERNMENT PLEADER
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A No.1210 of 2007 2
K.BABU, J.
Criminal Appeal No.1210 of 2007
Dated this the 1st day of December 2022
JUDGMENT
Aggrieved by the judgment dated 13.06.2007, passed by
the Additional Sessions Court (Adhoc-II), Kalpetta in S.C.No.193/2001, the accused has preferred this appeal. The
appellant/accused was convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh.
Crl.A No.1210 of 2007 3
the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence.
Crl.A No.1210 of 2007 4
a) The prosecution failed to rule out the possibility of
the sample being changed or tampered with.
b) The prosecution must fail on the ground that the
arrest and detection were made by an incompetent officer.
Crl.A No.1210 of 2007 5
a Division Bench of this Court in Ravi v. State of Kerala
[2011 (3) KHC 121] held thus:
“8. We, therefore, answer the reference as follows: It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.”
(emphasis supplied)
Crl.A No.1210 of 2007 6
Crl.A No.1210 of 2007 7
Enforcement and Anti Narcotic Special Squad, or the Excise Intelligence Squad were not given such powers under the 1967 Government Notification. In 2009, the Government of Kerala issued another notification, SRO.No.361/2009 dated 08.05.2009, in supersession of the 1967 notification by which special categories like Excise Officials of the Excise Enforcement and Anti Narcotic Special Squad and Excise Intelligence Squad were given powers of Abkari Officers under the Abkari Act. The resultant conclusion is that as on the date of detection in the present case, the detecting officer who was an Excise Inspector, Excise Enforcement and Anti Narcotic Special Squad, Wayanad had no such powers.
Crl.A No.1210 of 2007 8
detection made by an incompetent officer will have to collapse necessarily. On this ground also, the prosecution must fail.
The appeal is allowed as above.
Sd/K.BABU JUDGE
AP
3 issues framed by the court
Whether the unexplained delay in producing seized properties vitiated the prosecution case regarding tampering.
Whether the detecting officer had the lawful authority to conduct the search and seizure under the Abkari Act at the time of the offence.
Whether the conviction could be sustained given the incompetence of the detecting officer and lack of analysis evidence.
Colour shows how this judgement treated each authority
Ravi v. State of KeralaFollowed¶42
Ravi v. State of Kerala [2011 (3) KHC 121]
Suresh v. State of KeralaRelied on¶53
Suresh v. State of Kerala [2017 (2) KHC 891]
4 provisions across 2 enactments
MANOJ KUMAR NOOLPUZHA
INSPECTOR OF EXCISE EXCISE RANGE OFFICE, SULTHAN BATHERY
STATE OF KERALA
K. BABU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
