Sahadevan @ Maniyan vs The State Of Kerala
2021 Latest Caselaw 10211 Ker

             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.2230 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 266/2001 DATED 11-10-2006 OF
        ADDITIONAL DISTRICT COURT (ADHOC)-II, TRIVANDRUM

 AGAINST THE ORDER/JUDGMENT IN CP 126/2000 OF JUDICIAL MAGISTRATE
                  OF FIRST CLASS -II,NEDUMANGAD


APPELLANT/ACCUSED:

             SAHADEVAN @ MANIYAN
             S/O. KUNJUKRISHNAN NADAR,
             AMBILI MANDIRAM, SANNAGAR,
             ARASUPARAMBU MURI, NEDUMANGAD VILLAGE.

             BY ADVS.
             SRI.T.A.UNNIKRISHNAN
             SRI.K.SATHEESH KUMAR
             SRI. MURALEE KRISHNAN.R, AMICUS CURIAE.

RESPONDENT/COMPLAINANT:

             THE STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,, ERNAKULAM.

             R1 BY SMT. M. K. PUSHPALATHA, SR.PUBLIC PROSECUTOR


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                              -2-

CRL.A.No.2230 OF 2006




                        JUDGMENT

The appellant was convicted and sentenced by the

court below under Section 55(a) of the Abkari Act.

2. The prosecution allegation is that on

24.06.1999 at about 8 p.m., the appellant was found

in possession of 2 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.Muralee

Krishnan.R (Malakkara), as Amicus Curiae to argue the

case for the appellant.

4. Heard the learned Amicus Curiae and the

learned Senior Public Prosecutor.

5. The learned Amicus Curiae has argued that

since the detection, seizure of the contraband, arrest of

CRL.A.No.2230 OF 2006

the appellant and registration of the crime were done

by PW2, who was only an Assistant Excise Inspector,

the appellant is entitled to be acquitted.

6. As per SRO No.234/1967, the Assistant Excise

Inspector was not a competent and authorised officer

as an Abkari officer during the relevant period.

7. In Subrahmaniyan v. State of Kerala [2010

(2) KHC 552], the court 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 were without authorisation

and jurisdiction.

8. The court in Sasidharan v. State of Kerala

[2012 (2) KLT 392] followed the decision in

CRL.A.No.2230 OF 2006

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.

9. In this case, PW2 was only an Assistant

Excise Inspector during the relevant period. He

detected the offence, seized the contraband, arrested

the appellant and registered the crime. Since PW2 was

only an Assistant Excise Inspector, he was not an

Abkari Officer. Therefore, the seizure of the

contraband, arrest of the appellant and the registration

of the crime by PW2 were without authorisation and

jurisdiction and consequently, the conviction and

sentence passed by the court below on the basis of the

said seizure and arrest cannot be sustained.

CRL.A.No.2230 OF 2006

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 Nkr/25.03.2021