Kerala High Court
Sebastian vs State Of Kerala on 25 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943
CRL.A.No.783 OF 2006
SC 48/2005 OF ADDITIONAL SESSIONS COURT (ADHOC-1),
THODUPUZHA
CP 25/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I,
DEVIKULAM
APPELLANT/S:
SEBASTIAN
S/O.JOSE, VEVUKATTIL HOUSE, TEA COMPANY KARA,
BYSON VALLEY VILLAGE, IDUKKI.
BY ADV. SRI.SOORAJ ELANJICKAL
RESPONDENT/S:
STATE OF KERALA
THROUGH EXCISE INSPECTOR DEVIKULAM, REPRESENTED
BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
OTHER PRESENT:
SMT. M. K. PUSHPALATHA, SR.PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
25.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Case No. Crl. 783/2006
-2-
JUDGMENT
The appellant was convicted and sentenced by the
court below under Sections 55(a) and 8(2) of the Abkari
Act.
2. The prosecution allegation is that on 17.12.1999
at about 5.45 pm, the appellant was found in possession of
15 litres of illicit arrack, in contravention of the provisions
of the Abkari Act.
3. Heard.
4. The learned counsel for the appellant has argued
that since there is no evidence to prove the drawing of the
sample and sending the same to the laboratory in a tamper
- proof condition, the appellant is entitled to be
acquitted. It has been further argued by the learned
counsel for the appellant that since
Case No. Crl. 783/2006
the detection of the offence, seizure of the contraband and
the arrest of the appellant were made by PW1, who was
only an Assistant Excise Inspector, the appellant is entitled
to be acquitted on that ground as well.
5. PW1 was the Officer, who seized the contraband.
The evidence of PW1 would show that the contraband as
such was seized and sealed at the spot. Ext.P5 is the
property list which would show that a can having a capacity
of 20 litres, containing 15 litres of contraband had been
produced before the court. Ext.P1 Mahazar would also
show that the contraband as such was seized and sealed at
the spot. Ext.P7 is the Certificate of Chemical Analysis,
which would show that 250 ml of the sample was produced
before the laboratory in a 375 ml bottle. This would show
Case No. Crl. 783/2006
that the sample was produced from the contraband after its
production before the court. However, the Thondy Clerk,
who had drawn the sample from the contraband, was not
examined before the court to prove the drawing of the
sample from the contraband.
6. 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."
7. In Ravi v. State of Kerala [2011 (3) KLT 353], the
Case No. Crl. 783/2006
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.
8. Since the Thondy Clerk concerned was not
examined, the prosecution could not establish the drawing
of the sample from the contraband and sending the same to
the laboratory in a tamper - proof condition. Consequently,
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, there is no link
Case No. Crl. 783/2006
evidence to connect the appellant with the sample analysed
in the laboratory. Consequently, the appellant is entitled
to be acquitted.
9. The seizure in this case was effected by PW1 who
was only an Assistant Excise Inspector. He also arrested
the appellant. As per S.R.O. No.234/1967, the Assistant
Excise Inspector was not an Abkari Officer under the
Abkari Act during the relevant period.
10. The court in Subrahmaniyan v. State of Kerala
[2010 (2) KHC 552] held that the Assistant Excise
Inspector was not a competent and authorised Officer under
the Abkari Act, especially under Sections 4(d) and 70 of the
Abkari Act as per S.R.O. No.234/1967 and hence, the
seizure and arrest made by the Assistant Excise Inspector
Case No. Crl. 783/2006
were without authorisation and jurisdiction.
11. The court in Sasidharan v. State of Kerala [2012
(2) KLT 392] followed the decision in Subrahmaniyan
(supra) and held that the Assistant Excise Inspectors were
not empowered under the Abkari Act prior to 8.5.2009 to
perform the duties under Sections 31, 32, 34, 35 and 38 to
53 of the Abkari Act.
12. Since PW1 was only an Assistant Excise
Inspector, he was not competent to perform the duties of
an Abkari Officer during the relevant period. Therefore,
PW1 had no authority to effect the seizure of the
contraband and arrest of the appellant. In the said
circumstances, the seizure of the contraband and the arrest
of the appellant, by PW1 were without authorisation and
jurisdiction. Consequently, the conviction and sentence
Case No. Crl. 783/2006
passed by the court below relying on the said seizure of the
contraband and the arrest of the appellant cannot be
sustained. For the said reason also, the appellant is entitled
to be acquitted.
In the result, this Criminal 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.
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