Jose vs The State Of Kerala on 16 February, 2006
In the decision in Sabu vs. State of Kerala (2007 (3)
KHC 753), it was held as follows:
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Sabu vs State Of Kerala on 29 August, 2003
A.Sandesh Kumar vs Station House Officer on 26 October, 2007
Rules 9,11 and 11A of the Foreign Liquor Rules restricts possession and
transportation of such Indian made foreign liquor. In the light of the
above provisions of law, it can be safely concluded that the offence
committed by the appellant is punishable under Section 63 of the Abkari
Act for violation of the rules made under the provisions of the Abkari Act.
The judgment of this Court reported in Sabu v. State of Kerala, 2007(4)
K.L.T. 169, supports this view.
Baby vs State Of Kerala Represented By on 4 June, 2008
3. Learned counsel appearing for the petitioner
submitted the allegations made as per the available records will
not constitute offence under Section 58. Applying the dictum
laid down in Sabu vs. State of Kerala (2003(2) KLT 173)
there is only a bailable offence in this case. The mere possession
of Indian made Foreign liquor is not sufficient to make out an
offence under Section 58 of Abkari Act. But the Section having
been quoted wrongly as Section 58 of Abkari Act, it will be
difficult to get bail from lower court. Hence, petitioner seeks
anticipatory bail, failing which he will suffer great hardship.
Madhu vs State Of Kerala on 17 July, 2008
4. This petition is opposed. Learned public prosecutor
submitted that the offence involved is not under Section 55(a),
but it is under Section 55(i) of Abkari Act and hence, Sabu vs.
State of Kerala is not applicable to the facts of this case. I am
satisfied of the submissions made. The petitioner also could not
substantiate his innocence. In the above circumstances, even bail
cannot be granted in view of Section 41A of the Abkari Act.
Achankunju vs State Of Kerala on 5 March, 2009
Since the dispute between the two
decisions reported in Sabu v. State of Kerala (2007 (3) KLJ 157 = 2007 (4)
KLT 169) and Vikraman v. State of Kerala (2007 (1) KLT 1010) are upheld.
We send back this case to the learned single Judge for a decision in Criminal
Appeal on merit.
Vikraman vs State Of Kerala on 20 June, 2007
2. The learned counsel for the petitioner submits that no
seizure was effected from the possession of the petitioner and that the
theory that the transportation by the 1st accused was on behalf of the
petitioner is without any basis. Counsel further submits that at any
rate the decision in Sabu v. State of Kerala [2003(2) KLT 173] must
help the petitioner to contend that the offence under Section 55(a) of
the Kerala Abkari Act will not be revealed from the alleged facts.
Mohanan vs State Of Kerala on 12 December, 2006
In this connection, we are also
of the view that heading of section 55 gives an
indication of the legislative intent as noticed in
paragraph 3 of the judgment in Sabu v. State of Kerala
(2003 (2) KLT 173). In a case where licensee violates
the conditions of licence or commits misconduct by
selling the liquor in a holiday, it will come only under
section 56 as specific provision for misconduct of
licence is mentioned under section 56 and the above
offence will not come under section 55 of the Act.
Sreenivasan Thampi vs State Of Kerala on 15 December, 2006
Before
that, another learned Judge of this Court in the decision in
Sabu Vs. State of Kerala [2007 (4) KLT 169] has held
that, "Assistant Sub Inspector of police is not an authorised
officer to detect and investigate an offence under the Act".
Devarajan vs State Of Kerala on 23 December, 2005
13. It is quite evident from the above decision that in
the notification then in existence, admittedly, an Assistant
Excise Inspector was not a competent officer to detect or
investigate an offence under the Abkari Act. He became a
competent officer only in the year 2009 and a notification
was also issued in this regard. In the light of the above
decision, it follows that the detection and all other acts done
by PW1 are bad in law and has no legal sanction. This is
sufficient to set aside the conviction.
Krishnan @ Kappalandi Krishnan vs State Of Kerala on 19 April, 2006
"To prove the guilt of the accused for the
possession of the contraband, that is, five litres
of arrack in a jerry can, as alleged, the
prosecution relied entirely on the evidence of
two Police officers connected with the
detection and seizure of the contraband, who
were examined as PWs 1 and 2. PW 1, Asst.
S.I. Of Police, who detected the crime and
seized the contraband, had no authority to do
so, is the attack raised by the learned counsel
for the accused, relying on the notification of
SRO No. 321/1996 and also the decision
rendered by this Court in Sabu v. State of
Kerala, 2007 (3) KHC 753: 2007 (4) KLT 169.
If it was a case of accidental detection without
prior information, then it could be stated that
any police officer was expected to prevent the
commission of any offence and taking the
offender into custody. But this was a case,
even according to the prosecution, PW 1, the
Asst. S.I. of Police received prior information of
sale of illicit arrack in the residential building of
the accused. He proceeded to that spot,
pursuant to that information indicated that he
went there to have a raid of the building, and,
search the place. When a raid over the
residential building for detection of Abkari
offence is involved, necessarily and inevitably
Crl.A. No. 943 of 2006
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the mandate covered by S.31 of the Act applies
with full force. There is nothing in evidence to
show that PW1 complied with the formalities
for conducting search over the residential
building of the accused. Immediately on
getting information, he rushed to the spot and
reaching there, found the accused with a jerry
can beside the courtyard of his building, seized
the contraband into custody and arrested him,
is the prosecution case. As per S.4 of the
Abkari Act, the Government had authorised
only certain Officers of the State to detect or
investigate the offences contemplated under
the Abkari Act. The Asst. S.I. of Police, as per
the notification issued by the Government, is
not authorised nor empowered to detect or
investigate the abkari offences. Having regard
to the fact that PW 1 went over to the
residential building of the accused pursuant to
information that sale of illicit arrack ws
conducted there, prima facie, indicating that he
went over to proceed with a search of that
building, that too, without complying with the
formalities, it follows that whatever acts
performed by him pursuant to reaching the
spot could not be taken as having been done
with the sanction of law. No doubt, illegality or
irregularity in a search will not by itself vitiate
Crl.A. No. 943 of 2006
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the evidence collected by the search and there
is no bar in relying upon the evidence collected
in such search to inculpate the accused. But in
the given case, what has come out is that the
prosecution at a later stage had developed a
case that at the relevant time, PW 1, the Asst.
S.I. of Police was in charge of the police station,
and as such he was competent to detect a
crime and seize the contraband. PW 1 has no
such case when he was examined before the
Court. So much so, the assertion of PW 4 that
PW 1 at the relevant time was in charge of the
S.I. of police since that officer was on leave
cannot be given much value. So, there is much
force in the submission of the learned counsel
for the accused that PW 1 was not an
authorised officer competent to detect and
investigate an offence under the Abkari Act,
and as such the detection made by him was
unauthorised. The accused in the given facts is
entitled to the benefit of doubt since PW 1 was
not empowered to detect and investigate the
crime. So much so, it has to be concluded that
the conviction and sentence imposed against
the accused are liable to be set aside, and I do
so. The accused is found not guilty and
acquitted of the offence under S. 55 (a) of the
Abkari Act. Fine amount, if any, remitted by
Crl.A. No. 943 of 2006
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the accused shall be refunded to him. Appeal
is allowed."