Kerala High Court
Kumar @ Venu vs State Of Kerala on 26 November, 2020
Author: B.Sudheendra Kumar
Bench: B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
THURSDAY, THE 26TH DAY OF NOVEMBER 2020 / 5TH AGRAHAYANA,
1942
CRL.A.No.1086 OF 2007
SC 456/2004 OF ADDITIONAL DISTRICT COURT (ADHOC)III,
THIRUVANANTHAPURAM
APPELLANT/S:
KUMAR @ VENU, S/O. KRISHNA NADAR,
PARAYAN VILAKATHU VEEDU, SISILIPURAM,,
VENGANNOOR DESOM, VENGANNOOR VILLAGE.
BY ADV. SRI.S.D.ASOKAN
RESPONDENT/S:
STATE OF KERALA
REP. BY THE SUB INSPECTOR OF POLICE,
BALARAMAPURAM,, THROUGH THE PUBLIC
PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
SMT.V.SREEEJA,PP, SRI.AKASH.S, AMICUS CURIAE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.11.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Case No. Crl.A 1086/2007
-2-
JUDGMENT
The appellant was convicted and sentenced by the court below under Section 8(2) of the Abkari Act.
2. The prosecution allegation is that on 7.12.2000 at about 4 p.m., the appellant was found in possession of four litres of arrack, in contravention of the provisions of the Abkari Act.
3. Since there is no representation for the appellant, this Court has appointed Adv.Sri.Akash S. as the Amicus Curiae to argue the case for the appellant.
4. Heard the learned Amicus Curiae and the learned Public Prosecutor.
5. The learned Amicus Curiae has argued that since no forwarding note was produced or marked in this case, Case No. Crl.A 1086/2007 -3- the appellant is entitled to benefit of doubt.
6. It appears that no forwarding note was produced or marked in this case.
7. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus:
"Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant."
8. In Ravi v. State of Kerala [2011 (3) KLT 353], the Division Bench of this Court held that the prosecution in a case under the Abkari Act could succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamper proof condition. Case No. Crl.A 1086/2007 -4-
9. Since no forwarding note was produced or marked in this case, the prosecution could not establish the tamper
- proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper - proof condition. In the said circumstances, the appellant is entitled to benefit of doubt.
10. There is yet another reason to grant benefit of doubt to the appellant. In this case, PW3 was the Assistant Sub Inspector of Police, who detected the offence, seized the contraband, arrested the appellant and registered the crime. As per S.R.O. No.321/96, 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 Case No. Crl.A 1086/2007 -5- the Police Department were empowered to exercise all powers and perform all duties of the Abkari officers. The Assistant Sub Inspector of Police was not included as an Abkari Officer as per S.R.O. No.321/96. The learned Public Prosecutor has submitted that thereafter also, no notification was issued making the Assistant Sub Inspector of Police as an Abkari Officer under the Act.
11. The Division Bench of this Court in Subash v. State of Kerala [2008(2) KLT 1047] held that the Assistant Sub Inspector of Police is not an Abkari Officer as defined under the Abkari Act. In the above said case, the Division Bench directed the final report to be returned for re- presentation after curing the defects, if the trial was not commenced. In this case, since the Assistant Sub Inspector of Police was not an Abkari Officer, the seizure effected, Case No. Crl.A 1086/2007 -6- the arrest of the appellant and the registration of the crime by PW3 were without authorisation and jurisdiction and in the said circumstances, the conviction and sentence passed by the court below on the basis of the said seizure, arrest and registration of the crime, cannot be sustained. In the said circumstances also, the appellant is entitled to benefit of doubt.
In the result, this Appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged.
sd B. SUDHEENDRA KUMAR, JUDGE.
dl/