Ajayakumar vs State Of Kerala
2021 Latest Caselaw 7797 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

     FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942

                       CRL.A.No.837 OF 2007

  AGAINST THE ORDER/JUDGMENT IN SC 347/2002 DATED 17-04-2007 OF
        SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA

 AGAINST THE ORDER/JUDGMENT IN CP 262/2000 OF JUDICIAL MAGISTRATE
                    OF FIRST CLASS -I, PUNALUR


APPELLANT/ACCUSED:

             AJAYAKUMAR, S/O. VASUDEVAN,
             ANEESH VILASOM, PRAKKULAM CHATHUPPU,
             EZHAMKULAM, MURI, THINKAL KARICKOM VILLAGE.

             BY ADV. SRI.ALEXANDER GEORGE

RESPONDENTS/COMPLAINANT:

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

      2      THE SUB INSPECTOR OF POLICE
             YEROOR POLICE STATION,
             KOLLAM DISTRICT.

             R1 BY PUBLIC PROSECUTOR
             R2 BY SMT. M. K. PUSHPALATHA, SR.PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                            -2-

CRL.A.No.837 OF 2007




                       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 case is that on 24.10.2000

at about 5.25 p.m., the appellant was found in

possession of 2 litres of arrack, in contravention of the

provisions of the Abkari Act.

3. Heard.

4. The learned counsel for the appellant has

argued that since no forwarding note was produced or

marked, the appellant is entitled to be acquitted.

5. It has been further argued by the learned

counsel for the appellant that since the Assistant Sub-

Inspector of Police had detected the offence, seized

CRL.A.No.837 OF 2007

the contraband and registered the crime, the appellant

is entitled to be acquitted on that ground as well.

6. In this case, no forwarding note was

produced or marked before the court.

7. 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."

8. 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

CRL.A.No.837 OF 2007

which was allegedly seized from the accused

ultimately reached the hands of the chemical examiner

by change of hands in a tamper-proof condition.

9. 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. Therefore, 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 evidence to connect the appellant with Ext.P5

certificate of chemical analysis and consequently, the

conviction and sentence passed by the court below

cannot be sustained. In the said circumstances also,

CRL.A.No.837 OF 2007

the appellant is entitled to be acquitted.

10. PW4 was the 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

Inspector of Police as an Abkari Officer under the Act.

11. The Division Bench of this Court in Subhash

CRL.A.No.837 OF 2007

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

Assistant Sub Inspector of Police is not an Abkari

Officer as defined under the Act. In the above 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

crime by PW4 were without authorisation and

jurisdiction and consequently, 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. In the said

circumstances also, the appellant is entitled to be

acquitted.

CRL.A.No.837 OF 2007

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/05.03.2021.