Lalithambika vs State Of Kerala
2021 Latest Caselaw 9759 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

     TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943

                          CRL.A.No.986 OF 2007

  AGAINST THE ORDER/JUDGMENT IN SC 1619/2001 DATED 12-04-2007 OF
     ADDITIONAL S.C.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA


APPELLANT/ACCUSED:

             LALITHAMBIKA
             CHARAKKUPARA ATTARIKATHU PUTHEN VEEDU,
             KOVILLOOR DESOM, AMBOORI VILLAGE.

             BY ADVS.
             SRI.G.SASIDHARAN CHEMPAZHANTHIYIL
             SRI.S.VISHNU

RESPONDENT/COMPLAINANT:

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

             SMT. M. K. PUSHPALATHA, SR.PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                             -2-

CRL.A.No.986 OF 2007


                       JUDGMENT

The appellant was convicted and sentenced by the

court below under Section 58 of the Abkari Act.

2. The prosecution allegation is that on

03.07.2000 at about 4 p.m., the appellant was found in

possession of 2½ 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 Assistant Excise Inspector, who

was not an Abkari Officer, had seized the contraband and

arrested the appellant, the appellant is entitled to be

acquitted.

5. As per SRO No.234/1967, the Assistant Excise

Inspector was not an Abkari officer under the Abkari Act.

6. This court in Subrahmaniyan v. State of Kerala

[2010 (2) KHC 552] held that the Assistant Excise

CRL.A.No.986 OF 2007

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 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, PW2 was the Assistant Excise

Inspector during the relevant period. He detected the

offence. He also seized the contraband and arrested the

appellant. Since PW2 was only an Assistant Excise

Inspector, he was not an Abkari Officer. Therefore, he

CRL.A.No.986 OF 2007

had no competency to effect seizure of the contraband

and arrest of the appellant. Therefore, the seizure of the

contraband and the arrest of the appellant by PW2 were

without authorisation and jurisdiction and consequently,

the conviction and sentence passed by the court below

on the basis of the said seizure and arrest cannot be

sustained. In the said circumstances, the appellant is

entitled to be acquitted.

9. There is yet another reason to acquit the

appellant. Ext.P9 is the copy of the forwarding note,

which does not contain the sample seal.

10. This Court in Krishnan H. v. State [2015(1)

KHC 822] held that the absence of sample seal at the

space provided for the same in the copy of the

Forwarding Note is sufficient to presume that the sample

seal was not provided in the original Forwarding Note.

CRL.A.No.986 OF 2007

11. No evidence was adduced by the prosecution to

prove that the sample seal was affixed on the original

forwarding note.

12. 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 which was

allegedly seized from the accused ultimately reached the

hands of the chemical examiner by change of hands in

a tamper proof condition.

13. Since the sample seal was not affixed on the

original of the forwarding note, the prosecution could not

establish the tamper-proof despatch of the sample to the

laboratory. In the said circumstances, 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

CRL.A.No.986 OF 2007

of the chemical examiner by change of hands in a

tamper-proof condition. Consequently, there is no link

evidence to connect the appellant with the sample

analysed in the laboratory. For the said reason also, the

conviction and sentence passed by the court below

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 Nkr/23.03.2021