Vasu vs State Of Kerala
2021 Latest Caselaw 7601 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

       THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

 THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942

                      CRL.A.No.1378 OF 2007

  SC 1059/2002 OF ADDITIONAL SESSIONS COURT, KOTTARAKKARA

   CP 179/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III,
                          PUNALUR


APPELLANT/S:

               VASU, S/O. KESAVAN,
               PLAVILA VEEDU, ELAPPUPARA, PATHIRICKAL MURI,,
               PATHANAPURAM VILLAGE.

               BY ADVS.
               SRI.R.BINDU (SASTHAMANGALAM)
               SRI.PRASANTH M.P

RESPONDENT/S:

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


OTHER PRESENT:

               SMT. M. K. PUSHPALATHA, SR.PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Case No. Crl.A 1378/2007




                                -2-


                           JUDGMENT

The appellant was convicted and sentenced by the court below under Sections 55(b) and (g) of the Abkari Act.

2. The prosecution allegation is that on 6.7.2000 at about 7.30 p.m., the appellant was found engaged in manufacturing arrack in contravention of the provisions of the Abkari Act. The appellant was found in possession of three litres of arrack and 40 litres of wash at the relevant time.

3. Heard.

4. The learned counsel for the appellant has argued that since no forwarding note was marked and proved in this case, the appellant is entitled to be acquitted. It has been further argued by the learned counsel for the appellant that since the detection of the offence and the seizure of the contraband were made by PW5, who was only an Case No. Crl.A 1378/2007

Assistant Sub Inspector of Police, the appellant is entitled to be acquitted on that ground as well.

5. It appears that no forwarding note was marked and proved in this case.

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.A 1378/2007

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. No forwarding note was produced or marked in this

case. Therefore, the prosecution could not establish the

tamper - proof despatch of the samples to the laboratory.

Since there is no evidence in this case to prove the sending

of the samples to the laboratory in a tamper - proof

condition, there is no satisfactory link evidence to show

that the same samples, which were drawn from the

contraband seized from the appellant, which eventually Case No. Crl.A 1378/2007

reached the hands of the chemical examiner by change of

hands in a tamper - proof condition. In the said

circumstances, the appellant is entitled to be acquitted.

9. The offence in this case was detected by PW5,

who was an Assistant Sub Inspector of Police during the

relevant period. He seized the contraband and took the

samples from the contraband. He also arrested the

appellant. As per S.R.O. 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 the Abkari

officers. The Assistant Sub Inspector of Police was not

included as an Abkari Officer as per S.R.O. No.321/96. Case No. Crl.A 1378/2007

The learned Public Prosecutor has submitted that thereafter

also, no notification was issued making the Assistant Sub

Inspector of Police as an Abkari Officer under the Act.

10. The Division Bench of this Court in Subash v.

State of Kerala [2008(2) KLT 1047] held that the 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. 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 PW5 were without

authorisation and jurisdiction and in the said circumstances,

the conviction and sentence passed by the court below on Case No. Crl.A 1378/2007

the basis of the said seizure and registration of the crime,

cannot be sustained. In the said circumstances also, the

appellant is entitled to be acquitted.

In the result, this Criminal Appeal stands allowed,

setting aside the conviction and sentence and the appellant

stands acquitted. The bail bond of the appellant stands

discharged.

sd B. SUDHEENDRA KUMAR, JUDGE.

dl/