Kerala High Court
Sundaran vs State Of Kerala on 18 January, 2019
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
FRIDAY ,THE 18TH DAY OF JANUARY 2019 / 28TH POUSHA, 1940
CRL.A.No. 2244 of 2006
AGAINST THE JUDGMENT IN SC 238/2001 of ADDL. SESSIONS COURT
(ADHOC)-II, KALPETTA DATED 08-11-2006
APPELLANT/ACCUSED:
SUNDARAN, S/o KOMBI
KARUVALAKKAD HOUSE, ALATHOOR TALUK,, KUNJANNOOR
VILLAGE, PALAKKAD DISTRICT.
BY ADVS.
SRI.GRASHIOUS KURIAKOSE (SR.)
SRI.GEORGE MATHEWS
RESPONDENT/COMPLAINANT:
STATE OF KERALA
SULTHAN BATHERY RANGE, REP.BY, THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,, ERNAKULAM.
OTHER PRESENT:
SRI.SANTHOSH PETER (PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.01.2019, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No. 2244 of 2006 2
JUDGMENT
This is an appeal challenging the conviction and sentence under Section 55(a) of Kerala Abkari Act ("the Act") in S.C. No. 238/2001 of the Court of Session, Wayanad. The appellant faced prosecution before the learned Additional Sessions Judge (Adhoc-II), Kalpetta on the allegation that at about 5.50 p.m. on 04.02.2000, he was found possessing and transporting some quantity of arrack in the KSRTC Bus No. KL 15- 3667. The offence was detected by an Assistant Excise Inspector of the Sulthan Bathery Excise Range during his usual vehicle checking. When he intercepted the bus, and made an inspection inside the bus, he saw some packets of arrack being carried by the accused. He arrested the accused on the spot in the presence of witnesses including the bus conductor, and seized the contraband articles. He himself registered a crime at the Excise Check Post, and he produced the accused and the properties at the Excise Range Office where an Excise Inspector re-registered the crime. Another Excise Inspector took over investigation after one and half years, and he submitted final report in Court.
2. The accused appeared before the learned trial judge, and pleaded not guilty to the charge framed against him. Instead of framing a charge under Section 8(2) of the Act, the charge was wrongly framed under CRL.A.No. 2244 of 2006 3 Section 55(a) of the Act. The prosecution examined four witnesses, and proved Exts. P1 to P8 documents in the trial court. The MO1 series properties were also identified during trial. The accused did not adduce any evidence in defence.
3. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rs. 1,00,000/- (Rupees One lakh only) by judgment dated 09.11.2006. Aggrieved by the judgment of conviction, the appellant brought this appeal.
4. On hearing both sides and on a perusal of the materials, I find some serious infirmities in this case affecting the prosecution case, and the benefit of these must go to the accused. PW3 is the Assistant Excise Inspector who detected the offence, and PW4 is the Excise Inspector who conducted investigation. PW1 is the Excise Preventive Officer who assisted the Assistant Excise Inspector, and PW2 is the bus conductor. PW1 to PW3 have given evidence regarding the arrest of the accused, and the seizure of some quantity of arrack. This Court has settled that in cases like this the contraband articles must be produced in Court without any delay. The detection in this case was made on 04.02.2000, but the properties were produced in Court only on 08.02.2000. Nobody has got any explanation for the delay. This creates doubt, and also reason to believe that there was possibility of tampering with the CRL.A.No. 2244 of 2006 4 properties.
5. This Court has consistently held in so many decisions that the various functions under the Act can be discharged only by the Officers specifically authorised and appointed as Abkari Officers by the Government under Section 4 of the Act. In terms of Section 4 of the Act, the Government of Kerala issued a notification in 1967 as SRO 234/1967 by which different powers were conferred on different categories of Excise Officials. Assistant Excise Inspectors were not given any power under the Act by the said notification. Such category of Officers got powers under the Act only on 08.05.2009 as per another notification issued by the Government as SRO 361/2009 in suppression of the earlier notification. PW3 who detected the offence in this case had no competence or authority to make detection on the date of detection. The crime and occurrence report was first registered by him at the Excise Check Post. It was only re- registered at the Excise Range Office later. The crime was registered by the Assistant Excise Inspector without any authority. These two are the serious legal infirmities affecting the whole prosecution case. It is not known who conducted investigation for the first one and half years. It is not known in whose custody the properties were till 08.04.2000. The important functions like detection and registration of crime were discharged by an incompetent Excise Official. This will vitiate the whole prosecution, and on this ground itself the accused is entitled for acquittal. CRL.A.No. 2244 of 2006 5
In the result, this appeal is allowed. The appellant is found not guilty of the offence alleged against him under Section 55(a)of the Act and he is acquitted of the said offence in appeal. Accordingly, the conviction and sentence against him in SC 238/2001 of the court below will stand set aside, and the appellant will stand released from prosecution.
Sd/-
P.UBAID
sru JUDGE