Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE4H DAY OF NOVEMBER201313TH KARTHIKA, 1935 CRL.A.No. 794 of 2005 (F ) -------------------------- AGAINST THE ORDER
/JUDGMENT
IN SC2022004 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-III, KOLLAM DATED0605-2005 AGAINST THE ORDER
/JUDGMENT
IN CP2162000 of J.M.F.C.-I, KOLLAM APPELLANT/ACCUSED NO.1: -------------------------- FRANCIS, S/O.ELIAZ, NIRAPPUVILA VEEDU, ERUTHANANGADU, KAITHAKKODUMURI, PAVITHRESWARAM VILLAGE. BY ADV. SRI.C.RAJENDRAN RESPONDENT/COMPLAINANT: ---------------------------- STATE OF KERALA REPRESENTED BY THE S.I.OF POLICE, EAST KALLADA POLICE STATION (CRIME No. 170/2000) THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.N.SURESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON0411-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J.
-------------------------------------- Crl.A.No.794 of 2005 --------------------------------------- Dated this the 04th day of November, 2013 JUDGMENT
The first accused in S.C.No.202 of 2004 on the file of the court of the Additional District and Sessions Judge (Adhoc)-III, Kollam, challenging the judgment dated 06/05/2005 in the above Sessions Case as he is convicted and sentenced for the offence punishable under Section 55(g) and 8(2) of the Abkari Act, preferred this appeal.
2. The prosecution allegation is that the accused four in numbers found sitting in a wasteland called Ithikkunnu west belonging to Mathilakom Asramam to the south of the chira varambu leading to Chittumala distilled arrack and possessed implements and apparatus for distillation and also wash, on 13/8/2000 at about 1 A.M. early morning. Thus, according to the prosecution, the accused has committed the offence punishable under Section 55(a), (g), (i) and 8(2) of the Abkari Act. On the above allegation, Crime No.170 of 2000 was registered in the East Kallada Police Station. On completing Crl.A.No.794 of 2005 :-2-: the investigation, a report was filed. As the other three accused absconded the case against first accused alone was committed to the Sessions Court where S.C.No.202 of 2004 was instituted. Subsequently, the case posted before the present trial court for trial. When the first accused appeared before the court below a formal charge was framed against him, after hearing the prosecution as well as the defence, for the offence punishable under Section 55(g) and 8(2) of the Abkari Act and when the said charge read over and explained to him, he denied the same and pleaded not guilty and therefore the trial was proceeded further, during which the prosecution adduced its evidence by examining PWs.1 to 5 and producing Exts.P1 to P9 documents. MOs.1 to 8 were also identified as material objects.
3. Heard Sri.C.Rajendran, the learned counsel for the appellant and Sri.N.Suresh, the learned Public Prosecutor for the State.
4. Having regard to the facts and circumstances involved in the case and especially in the light of the settled Crl.A.No.794 of 2005 :-3-: position that the Assistant Sub Inspector of Police were not authorised to exercise the powers under Sections 40 to 53 of the Kerala Abkari Act, on the date of the alleged incident i.e., on 13/8/2000, particularly in view of the notification issued by the Government of Kerala vide SRO.No.324 of 1996, the appeal deserves to be allowed. Admittedly in the present case, the seizure was effected by PW.3, who was then working as Assistant Sub Inspector of Police and who was in charge of the Station House Officer of the East Kallada Police Station and who recorded Ext.P1 mahazar. In view of the Division Bench decision in Subash Vs. State of Kerala [2008(2)KLT1047, and in view of the decisions in Sabu Vs. State of Kerala [2007(4) KLT169, Unni Vs. State of Kerala [2009(2) KHC661], and in Thankamony Vs. State of Kerala [2007 KHC3806, particularly in view of the fact that on the date of the incident, in the present case the Assistant Sub Inspectors of Police Department, Kerala were not authorised or empowered as per the notification issued by the Government, to detect or investigate the abkari offences and therefore the Crl.A.No.794 of 2005 :-4-: evidences connected with the detection of the present crime, seizure of the contraband article, etc., are inadmissible as the same collected by the officer, who was not authorised. Hence, the findings arrived by the court below and its judgment, which is impugned in this appeal, are unsustainable and liable to be set aside. In the result, this appeal is allowed setting aside the judgment dated 6/5/2005 in S.C.No.202 of 2004 of the court of the Additional District & Sessions Judge, (Adhoc)-III, Kollam and the conviction recorded therein is also set aside and the appellant/accused is acquitted of all the charges levelled against him and 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