Sumathi @ Rajamma vs State Of Kerala
2021 Latest Caselaw 8386 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

       THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

  FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942

                      CRL.A.No.1372 OF 2007

   SC 23/2003 OF ADDITIONAL SESSIONS COURT, KOTTARAKKARA

      CP 72/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS
                      -I,KOTTARAKKARA


APPELLANT/S:

               SUMATHI @ RAJAMMA
               D/O.KALLIYANI, MUKALUVILA VEEDU, EAST MARADU
               MURI, PAVITHRESWARAM VILLAGE, KOTTARAKKARA,
               KOLLAM.

               BY ADV. SRI.K.V.ANIL KUMAR

RESPONDENT/S:

               STATE OF KERALA
               REP. BY PUBLIC PROSECUTOR, HIGH COURT OF
               KERALA,, ERNAKULAM.

               R1 BY PUBLIC PROSECUTOR

OTHER PRESENT:

               SMT. M.K.PUSHPALATHA, SR.PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Case No. CRL.A.No.1372   OF 2007


                                   -2-




                            JUDGMENT

The appellant was convicted and sentenced by the court below under Section 55(a) of the Abkari Act.

2. The prosecution allegation is that on 5.12.2000 at about 8.45 p.m., the appellant was found in possession of three litres of arrack for the purpose of sale, in contravention of the provisions of the Abkari Act.

3. Heard .

4. The learned counsel for the appellant has argued that since PW2, who detected the offence and seized the contraband, was only an Assistant Inspector of Police, the appellant is entitled to acquitted.

5. In this case, PW2 was only an Assistant Sub Inspector of Police. He detected the offence, seized the contraband and caused the arrest of the appellant through Case No. CRL.A.No.1372 OF 2007

PW4, the woman police constable. The sampling was also done by PW2.

6. 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. 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.

7. 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 Case No. CRL.A.No.1372 OF 2007

commenced. In this case, since PW2 was not an Abkari Officer, the seizure effected, the arrest of the appellant and the sampling by PW2, were without authorisation and jurisdiction and in the said circumstances, the conviction and sentence passed by the court below on the basis of the said arrest and sampling, cannot be sustained.

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/