Thomas vs State Of Kerala
2021 Latest Caselaw 7971 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

       THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

  MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942

                      CRL.A.No.1834 OF 2007

  SC 147/2006     OF III ADDITIONAL SESSUIBS COURT (ADHOC 1),
                           THODUPUZHA

      CP 83/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS
                      -I(THODUPUSHA)


APPELLANT/S:

               THOMAS, S/O.DEVASSIA,
               MULLATHARAPPEL HOUSE, PURAPPUZHAKARA, KODIKULAM
               VILLAGE, THODUPUZHA TALUK.

               BY ADV. SRI.P.CHANDY JOSEPH
               SMT. SAYUJYA, AMICUS CURIAE.

RESPONDENT/S:

               STATE OF KERALA
               REP. BY EXCISE INSPECTOR, EXCISE RANGE OFFICE,
               THODUPUZHA THROUGH PUBLIC PROSECUTOR, HIGH
               COURT OF KERALA.

               R1 BY PUBLIC PROSECUTOR

OTHER PRESENT:

               SMT. M. K. PUSHPALATHA, SR.PP,

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
08.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Case No. Crl.A 1834/2007



                                  -2-




                            JUDGMENT

The appellant was convicted and sentenced by the

court below under Sections 8(2) and 55(g) of the Abkari

Act.

2. The prosecution allegation is that on 22.6.2004 at

about 12.15 hrs., the appellant was found distilling arrack

using wash, in contravention of the provisions of the Abkari

Act. The appellant was found in possession of 40 litres of

wash and 2 litres of arrack at the relevant time.

3. Since there is no representation for the appellant,

this Court has appointed Adv.Smt.Sayujya as the Amicus

Curiae to argue the case for the appellant.

4. Heard the learned Amicus Curiae and the learned

senior Public Prosecutor.

Case No. Crl.A 1834/2007

5. The learned Amicus Curiae has argued that since

the detection of the offence, the seizure of the contraband

and the arrest of the appellant were done by PW1, who

was only an Assistant Excise Inspector, the conviction and

sentence passed by the court below cannot be sustained.

6. It appears that PW1 detected the offence, seized

the contraband, took the sample, arrested the appellant and

registered the crime. As per S.R.O. No.234/1967, the

Assistant Excise Inspector was not an authorised Officer

under the Abkari Act, especially under Sections 4(d) and 70

of the Abkari Act.

7. 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 Case No. Crl.A 1834/2007

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 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, the seizure was effected on 22.6.2004.

During those period, PW1 was only an Assistant Excise

Inspector. Therefore, he was not competent to act as an

Abkari Officer. Therefore, the seizure of the contraband,

the arrest of the appellant and the registration of the crime

by PW1, were without authorisation and jurisdiction. Case No. Crl.A 1834/2007

Therefore, the conviction and sentence passed by the court

below on the basis of the said seizure and arrest, cannot be

sustained and consequently, I set aside the same.

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.

dl/