Anilkumar vs State Of Kerala
2021 Latest Caselaw 10373 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

     FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943

                      CRL.A.No.1775 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 605/2002 DATED 05-08-2006 OF
        SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA

 AGAINST THE ORDER/JUDGMENT IN CP 152/2001 OF JUDICIAL MAGISTRATE
                 OF FIRST CLASS -II,KOTTARAKKARA


APPELLANT/ACCUSED:

             ANILKUMAR
             S/O.SURENDRAN PILLAI,
             RESIDING AT PULIMOOTTIL VEEDU,
             OYOOR MURI, VELINELLOOR VILLAGE @ ANIL BHAVANAM
             VEEDU, MAILAMOODU MURI, KULATHIPUZHA VILLAGE.

             BY ADV. SRI.JOHNSON GOMEZ
             SRI. ALEKH THOMAS, AMICUS CURIAE.

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY THE SUB INSPECTOR OF POLICE,
             POOYAPPALLY, THROUGH PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

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


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                            -2-

CRL.A.No.1775 OF 2006




                        JUDGMENT

The appellant was convicted and sentenced by

the court below under Sections 55(a) and (i) of the

Abkari Act.

2. The prosecution case is that on 13.11.2000

at about 10.15 a.m., the appellant was found in

possession of 7 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.Alek Thomas,

as Amicus Curiae to argue the case for the appellant.

4. Heard the learned Amicus Curiae and the

learned Senior Public prosecutor.

5. It has been argued by the learned Amicus

Curiae that since no forwarding note was produced

CRL.A.No.1775 OF 2006

and marked in this case, the appellant is entitled to be

acquitted.

6. The learned Amicus Curiae has further

argued that since the seizure of the contraband and

the registration of the crime were done by PW4, who

was only an Assistant Sub Inspector of Police, the

appellant is entitled to be acquitted on that ground as

well.

7. It appears that no forwarding note was

produced and marked in this case.

8. 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

CRL.A.No.1775 OF 2006

cannot be held to have brought home the offence against the appellant."

9. In Ravi v. State of Kerala [2011 (3) KLT 353],

the 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.

10. Since no forwarding note was produced and

marked in this case, the prosecution could not

establish the tamper-proof despatch of the sample to

the laboratory. 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-

CRL.A.No.1775 OF 2006

proof condition. Therefore, there is no link evidence to

connect the appellant with the sample analysed in the

laboratory. In the said circumstances, the appellant is

entitled to be acquitted.

11. In this case, PW4 was an Assistant Sub

Inspector of Police, who detected the offence, seized

the contraband and registered the crime. The

sampling was also done by PW4. As per SRO

No.321/96, all Police Officers of and above the rank of

Sub Inspector of Police in charge of law and order and

working in the General Executive Branch of the Police

Department were empowered to exercise all powers

and perform all duties of Abkari Officers. The Assistant

Sub Inspector of Police was not included as an Abakri

Officer as per SRO No.321/96. The learned Public

Prosecutor has submitted that thereafter also, no

notification was issued making the Assistant Sub

CRL.A.No.1775 OF 2006

Inspector of Police as an Abkari Officer under the Act.

12. The Division Bench of this Court in Subhash

v. State of Kerala [2008 (2) KLT 1047] held that

Assistant Sub Inspector of Police is not an Abkari

Officer as defined under the Abkari Act. In the above

said case, the Division Bench directed the final report

to be returned for re-presentation after curing the

defects, if the trial was not commenced.

13. In this case, since the Assistant Sub

Inspector of Police was not an Abkari Officer, the

seizure effected and the registration of the crime by

PW4 were without authorisation and jurisdiction. In

the said circumstances, the conviction and sentence

passed by the court below on the basis of the said

seizure of the contraband and registration of the crime

cannot be sustained. Consequently, the appellant is

entitled to be acquitted on this ground as well.

CRL.A.No.1775 OF 2006

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 Nkr/26.03.2021