Thalakkattu Kumaran vs Station House Officer
2021 Latest Caselaw 9215 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR. JUSTICE T.R.RAVI

     FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942

                       CRL.A.No.575 OF 2008

  AGAINST THE ORDER/JUDGMENT IN SC 358/2001 DATED 23-02-2008 OF
         ADDITIONAL SESSIONS COURT (ADHOC-II) KASARAGOD



APPELLANT/ACCUSED:

             THALAKKATTU KUMARAN
             S/O F. KANNANKUNHI,
             41/2000, PALICHAN ROAD,
             THAIKADAPPURAM, NILESHWAR VILLAGE.

             BY ADVS.
             SRI.SIJI ANTONY
             SRI.BALU TOM


RESPONDENTS/COMPLAINANT & STATE:

      1      STATION HOUSE OFFICER
             NILESHWAR POLICE STATION.

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

             R1-2 BY PUBLIC PROSECUTOR SMT. SYLAJA


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.575 OF 2008

                                      2



                                JUDGMENT

Dated this the 19th day of March 2021

The accused in S.C.No.358/2001 on the file of the

Additional Sessions Court, Adhoc II, Kasaragod has

filed this appeal being aggrieved by the judgment dated

23.02.2008, whereby he has been found guilty of offence

under Section 55(a) of the Abkari Act and sentenced to

undergo simple imprisonment for a period of one year

and to pay a fine of ₹1,00,000/- and in default of

payment of fine to undergo simple imprisonment for a

further period of 3 months.

2. The case of the prosecution is that on

13.07.2000 at about 6.10 p.m., the accused was found in

possession of 5 litres of arrack in a can which was of

10 litre capacity. The offence was detected by the Sub

Inspector of Police, who himself registered the crime

as Crime No.125/2000. After completing the

investigation, final report was presented before the

Court of Judicial First Class Magistrate-II, Hosdurg, CRL.A.No.575 OF 2008

and it was taken into file as C.P.No.161/2000. The

case was then committed to the Sessions Court and it

was taken on file as S.C.No.358/2001. On the side of

the prosecution, PW1 to PW4 were examined and Exts.P1

to P8 were marked. MO1 & MO2 were produced and

identified. Based on the evidence on record, the court

below found the accused guilty of the offence charged

against him and imposed the sentence referred above.

3. Heard Sri.Balu Tom, learned counsel on behalf

of the appellant and Smt.Sylaja, learned Public

Prosecutor on behalf of the State.

4. The main contention of the counsel for the

appellant is that the very same officer, who detected

the crime had registered the crime, conducted the

investigation and laid the charge before the court. He

submits that such a procedure is not contemplated under

Section 38 of the Abkari Act. The evidence on record

would show that the above contention is factually

correct. PW2 is the Officer who had detected the

offence as well as completed the investigation and CRL.A.No.575 OF 2008

charge sheeted the appellant. Section 38 specifically

says that every Abkari Officer shall be bound to give

immediate information either to his immediate official

superior or to an Abkari Inspector regarding all

breaches of any of the provisions of this Act which may

come to his knowledge. The very purpose of the above

stipulation is to ensure a fair trial. There is

nothing on record to show that PW2 has complied with

these requirements.

5. A Single Judge of this Court in Naushad v.

State of Kerala reported in (2000 (1) KLT 785) held in

a case relating an offence under the NDPS Act, that

where the complainant himself is a police official, the

investigation should have been conducted by his

superior officer. The above decision was overruled by a

Division Bench of this Court in Kader v.State of Kerala

reported in (2001 KHC 424). The Hon'ble Supreme Court

has thereafter in the decision in Mohan Lal v. State of

Punjab reported in [(2018) 17 SCC 627] specifically

considered the judgments of this Court in Naushad CRL.A.No.575 OF 2008

(supra) and Kader (supra)and overruled the decision of

the Division Bench in Kader (supra) and approved the

view taken in Naushad (supra). This Court in Joy v.

Circle Inspector of Police & another reported in 2018

KHC 793 relied on Naushad (supra) and held that the

detecting officer himself verifying investigation and

filing the charge sheet is not proper and the

investigation ought to have been by a superior officer.

In Suresh Babu v. State of Kerala [2017 (4) KHC 693],

this Court held that under Section 38 of the Abkari

Act, the detecting officer was bound to inform the

superior officer of the detection of the offence. In

the light of the above declaration of law, the

contention of the counsel for the appellant is well

founded.

6. Another contention that has been taken up by

the counsel for the appellant is that even though the

property list would show that what was taken custody

was only 5 litres of arrack in a can of 10 litre

capacity, MO that was produced in court shows that the CRL.A.No.575 OF 2008

can was full of arrack which indicates that what was

produced as MO was not the seized articles. It is seen

from Ext.P5 property list that on production of the

seized articles before the court, the court had

directed the same to be returned to the Station House

Officer since there was no sufficient space to keep the

same in court. There is nothing in evidence to show

the manner in which these materials were kept in safe

custody in the Police Station. However, since I am

inclined to accept the contention of the counsel for

the appellant regarding impropriety of the same officer

who detected the offence, completing the investigation,

I do not think it is necessary to go into the above

discrepancy.

In the circumstances, the appellant is entitled to

succeed in this appeal. The judgment dated 23.02.2008

in S.C.No.358/2001 on the file of the Additional

Sessions Court (Adhoc-II), Kasargod is set aside. The

appellant is acquitted and set at liberty. The bail

bonds, if any, executed by the appellant or on his CRL.A.No.575 OF 2008

behalf are cancelled. At the time of admission of the

appeal on 18.03.2008, this Court had directed the

appellant to deposit a sum of ₹7,000/- before the court

below. The appellant will be entitled to get refund of

the same from the court below on proper application.

The appeal stands allowed.

Sd/-

T.R.RAVI, JUDGE

Pn