Kerala High Court
Benny vs State Of Kerala on 26 March, 2021
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.1908 OF 2007
AGAINST THE ORDER/JUDGMENT IN SC 280/2006 DATED 15-09-2007 OF
SPECIAL COURT (NDPS ACT CASES), THODUPUZHA
APPELLANT/ACCUSED:
BENNY, S/O. THOMAS,
KARIYITTU VEEDU,
OTTATHIMEDU BHAGOM, ARIVILAMCHAL KARA,
KANTHIPPARA VILLAGE, UDUMBANCHOLA TALUK.
BY ADVS.
SRI.M.K.DILEEPAN
SRI.DEEPAK T.NEDUNGADAN
SMT.P.SUMITHRA
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE EXCISE INSPECTOR,
UDUMBANCHOLA RANGE THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
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:
CRL.A.No.1908 OF 2007
-2-
JUDGMENT
The appellant was convicted and sentenced by
the court below under Sections 55(a), (i) and 8(2) of
the Abkari Act.
2. The prosecution allegation is that on
07.12.1998 at about 4 p.m., the appellant was found
in possession of 750 ml of arrack, in contravention of
the provisions of the Abkari Act.
3. Heard.
4. The learned counsel for the appellant has
argued that since PW3, who detected the offence,
seized the contraband and registered the crime, was
only an Assistant Excise Inspector during the relevant
period, the appellant is entitled to be acquitted.
CRL.A.No.1908 OF 2007
5. It appears that PW3 had detected the
offence, seized the contraband and registered the
crime. 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.
6. This 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 were without
authorisation and jurisdiction.
7. 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
CRL.A.No.1908 OF 2007
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.
8. Since PW3 was only an Assistant Excise
Inspector during the relevant period, he was not a
competent and authorised officer as an Abkari Officer.
Therefore, he was not competent to effect seizure of
the contraband and the registration of the crime. In
the said circumstances, the seizure of the contraband
and the registration of the crime by PW3 were without
authorisation and jurisdiction and consequently, the
conviction and sentence passed by the court below on
the basis of the said seizure and registration of crime
cannot be sustained.
In the result, this criminal appeal stands allowed,
setting aside the conviction and sentence passed by
CRL.A.No.1908 OF 2007
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
