Raveendran vs State Of Kerala
2021 Latest Caselaw 9536 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

       THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

  MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943

                      CRL.A.No.953 OF 2011

 AGAINST THE ORDER/JUDGMENT IN SC 340/2008 DATED 11-05-2011
     OF ADDITIONAL SESSIONS COURT (ADHOC)FAST TRACK-I,
                       PATHANAMTHITTA


APPELLANT/S:

               RAVEENDRAN, S/o.GOPALAN,
               KAVINTEKIZHAKKETHIL VEEDU,
               KURAMPLATHEKKEKKARA, ADOOR,
               ADOOR TALUK,PATHANAMTHITTA.

               BY ADV. SRI.AJITH MURALI

RESPONDENT/S:

               STATE OF KERALA,
               PROSECUTOR,HIGH COURT OF KERALA,
               ERNAKULAM.


OTHER PRESENT:

               SMT. M. K. PUSHPALATHA, SR.PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
22.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.Appeal No.953 of 2011


                                     -2-



                                  JUDGMENT

The appellant was convicted and

sentenced by the court below under Section

8(2) of the Abkari Act.

2. The prosecution allegation is

that on 24.09.2007 at about 6.30 p.m., the

appellant was found in possession of 4.8

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 the

detection of the offence, the seizure of the

contraband, the arrest of the appellant,

the sampling and the registration of the Crl.Appeal No.953 of 2011

crime were done by PW5, who was only an

Assistant Excise Inspector, the appellant is

entitled to be acquitted.

5. It appears that PW5, who detected

the offence was only an Assistant Excise

Inspector during the relevant period. As

per S.R.O.No.234/1967, the Assistant Excise

Inspector was not a competent and authorised

officer under the Abkari Act.

6. In Subrahmaniyan v. State of

Kerala [2010 (2) KHC 552], the court 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 Abkari Act as per S.R.O.

No.234/1967 and hence, the seizure and Crl.Appeal No.953 of 2011

arrest made by the Assistant Excise

Inspector were without authorisation and

jurisdiction.

7. 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.

8. In this case, the incident was on

24.09.2007. PW5 was only an Assistant

Excise Inspector at the relevant time. He

detected the offence, seized the contraband,

took the samples and arrested the appellant. Crl.Appeal No.953 of 2011

He also registered the crime. Since PW5 was

only an Assistant Excise Inspector during

the relevant period, he was not an Abkari

Officer and hence the arrest of the

appellant, the seizure of the contraband,

the sampling and the registration of the

crime were done by PW5 without authorization

and jurisdiction and consequently, the

conviction and sentence passed by the court

below on the basis of the said arrest,

seizure and registration of crime cannot be

sustained.

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 Crl.Appeal No.953 of 2011

of the appellant stands discharged.

Needless to state that if the

appellant had already deposited any amount

before the trial court pursuant to the

direction of this Court, the appellant is

entitled to reimbursement of the said amount

from the court concerned.

Sd/-

B. SUDHEENDRA KUMAR, JUDGE STK