In a criminal appeal under Section 8(2) of the Abkari Act, the High Court allowed the appeal and acquitted the appellant. The court held that the detecting officer lacked statutory powers under the notification in force and the prosecution failed to prove tamper-proof despatch of the seized sample.
Acquittal of the appellant/accused and setting him 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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 8TH DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, 1944
CRL.A NO. 2474 OF 2008
AGAINST THE JUDGMENT OF CONVICTION AND SENTENCE IN SC 379/2006 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA DATED 30.09.2008
APPELLANT/ACCUSED:
PRABHAKARAN S/O.AYYAPPAN, NENMENI SULTHAN BATHERY.
BY ADVS. SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL 108692
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
REKHA – GOVERNMENT PLEADER
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A No.2474 of 2008 2
K.BABU, J.
Crl.A No. 2474 of 2008
Dated this the 8th day of December, 2022
JUDGMENT
Aggrieved by the judgment dated 30.09.2008, passed by the Additional Sessions Court (Adhoc-II) Kalpetta, in Sessions Case No.379/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) 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.2474 of 2008 3
Sessions Court, from where it was made over to the Trial Court. On the appearance of the accused, charge was framed against him for the offence punishable under Section 8(2) 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.
statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. On the side of the defence DW1 was examined and Ext.D1 was marked. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence.
Crl.A No.2474 of 2008 4
a) The detection was made by an incompetent officer.
b) The prosecution failed to establish the tamper-proof
despatch of the sample to the laboratory.
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seal used. The specimen of the seal was also not produced before the Court at the time of production of the sample.
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meant for mentioning the name of the Excise guard to whom the sample was forwarded to the laboratory is left vacant.
in Kumaran v. State of Kerala [2016 (4) KLT 718], held thus:
“7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the
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laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”
12 . In the present case neither the property clerk nor the Excise official with whom the sample was forwarded to the laboratory was examined. The prosecution failed to establish the tamper-proof despatch of the sample to the laboratory.
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Excise Enforcement and Narcotic Special Squad, Wayanad. The detection was made on 14.01.2005. The Government notification issued as SRO.No.234/1967 had authorised various categories of Excise Officials to discharge the various functions under the Kerala Abkari Act as Abkari Officers. By the said notification only Abkari Officials attached to Excise Range Offices or Circles, or such officers in charge of distilleries, warehouses, wineries etc., were given powers as Abkari Officers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Excise Officials of special wings or squads like Excise 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
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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 inspector, Excise Range Office, Sulthanbathery had no such powers.
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The appeal is allowed as above
Sd/-
K.BABU JUDGE
AP
3 issues framed by the court
Whether the conviction can be sustained where the detection was made by an incompetent officer without powers under the relevant notification?
Whether the prosecution established tamper-proof despatch of the seized sample to the laboratory?
Whether the evidence obtained from the sample is admissible when the link between the accused and the contraband is not established?
Colour shows how this judgement treated each authority
Bhaskaran v. State of KeralaApplied¶9
Bhaskaran v. State of Kerala (2020 KHC 5296)
Kumaran v. State of KeralaApplied¶11
Kumaran v. State of Kerala [2016 (4) KLT 718]
Suresh v. State of KeralaApplied¶15
Suresh v. State of Kerala [2017 (2) KHC 891]
3 provisions across 2 enactments
PRABHAKARAN S/O.AYYAPPAN, NENMENI SULTHAN BATHERY.
STATE OF KERALA
K. BABU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
