Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE1T DAY OF NOVEMBER201310TH KARTHIKA, 1935 CRL.A.No. 276 of 2005 (F) -------------------------- AGAINST THE ORDER
/JUDGMENT
IN SC312003 of ADDL. SESSIONS JUDGE FAST TRACK COURT -II, ALAPPUZHA DATED0102-2005 APPELLANT/ACCUSED:: ------------------------ SUDHAKARAN, AGED47YEARS, S/O. KOCHUCHERUKKAN, REMA BHAVANAM, THEKKEKKARA KIZHAKKUM MURI, PALLIPPADU VILLAGE. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT/COMPLAINANT:: ------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.N.SURESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON0111-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J.
-------------------------------------- Crl.A.No.276 of 2005 --------------------------------------- Dated this the 01st day of November, 2013 JUDGMENT
The sole accused in S.C.No.31 of 2003 on the file of the court of the Additional Sessions Judge Fast Track Court-II, Alappuzha is the appellant herein as he is aggrieved by the conviction and sentence imposed on him under Section 8(1) & (2) and 55(a) of the Kerala Abkari Act as per the judgment dated 01/02/2005 in the above Sessions Case.
2. The prosecution case is that on 18/2/2000 at about 7.30 A.M. the accused was found with 2 bottles of 750 ml. arrack in a plastic kit near St.George Orthodox Kurisadi in Pallippad muri against the provisions of Abkari Act and thereby committed the offence punishable under Section 8(1) & (2) and 55(a) of the Abkari Act. Accordingly, Crime No.8 of 2000 was registered in the Karthikappally Excise Range for the said offence and on completing the investigation, a formal charge was filed in the Judicial First Class Magistrate Court-I, Crl.A.No.276 of 2005 :-2-: Haripad who in turn by his order in C.P.No.63 of 2002 committed the case to the Sessions Court where S.C.No.31 of 2003 was instituted from where the case was made over to the present trial court. Thus, when the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed against the accused for the offence punishable under Section 8(1) & (2) of the Abkari Act which when read over and explained to the accused, he denied the charge and pleaded not guilty. Thereafter the prosecution adduced its evidence by examining Pws.1 to 6 and produced Exts.P1 to P4 documents and Mos.1 to 3 were also identified as material objects. Though no document is produced from the side of the defence, DW.1 was examined. The learned Judge of the trial court finally concluded that the ingredients of Section 8(1) & (2) of the Abkari Act has been clearly established by the prosecution and thus the accused is found guilty of the above offence and accordingly he is convicted thereunder. On such conviction the appellant/accused is sentenced to undergo rigorous imprisonment for one year and to pay fine of Crl.A.No.276 of 2005 :-3-: `1,00,000/- and in default of payment of fine, he is directed to undergo rigorous imprisonment for three more months. Set off is allowed. It is the above finding, conviction and sentence that are challenged in this appeal.
3. Heard Sri.Shanavas Khan, the learned counsel for the appellant and Sri.N.Suresh the learned Public Prosecutor for the State.
4. The case of the prosecution is that, when PW.1 the then Assistant Excise Inspector attached to Karthikapally Excise Range, was on patrol duty on 18/2/2000 at about 7.30 A.M. and when he reached near the house of one Giji Villa, he found the accused with arrack in a plastic bag and on inspection of the bag he found the accused with arrack in two plastic bags, which on smelling and tasting realised as illicit arrack and accordingly the accused was arrested and the contraband articles were seized. So, it is crystal clear that the entire procedure towards the detection of the crime, seizure of the contraband article and the arrest of the accused was made by PW.1 who is then working as Assistant Excise Inspector. Crl.A.No.276 of 2005 :-4-: The prosecution has no case that on the date of the alleged seizure and arrest of the accused i.e., on 18/2/2000 the Assistant Excise Inspectors in the Excise Department were empowered to exercise the powers under Sections 40 to 53 of the Abkari Act. This Court had occasion to consider the above position and in the decision reported in Sasidharan Vs. State of Kerala [2012 (2) KLT392, this Court has held that the Assistant Excise Inspectors of Excise Department were authorised to exercise the powers under Sections 40 to 53 only with effect from 08/05/2009 as per SRO No.361 of 2009 dated 08/5/2009. Thus it is crystal clear that on the date of the alleged incident, in the present case, the Assistant Excise Inspectors of Excise Department were not authoritised or empowered to exercise the powers under Sections 31, 32, 34, 35, 38, 39 & 53 of the Abkari Act. The seizure and arrest effected by PW.1 being the Assistant Excise Inspector at the relevant time render as inadmissible and illegal and therefore on that ground the appellant is entitled to get an acquittal. Crl.A.No.276 of 2005 :-5-: In the result, this appeal is allowed setting aside the judgment dated 01/02/2005 in S.C.No.31 of 2003 of the court of the Additional Sessions Judge, Fast Track No.II, Alappuzha and the appellant/accused is acquitted of all the charges levelled against him and the bail bond, if any, executed by him stands cancelled and he is set at liberty. V.K.MOHANAN, JUDGE skj True copy P.A. to Judge