Kerala High Court
Ajayan vs State Of Kerala on 24 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943
CRL.A.No.2425 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 2031/2004 DATED 29-08-2006
OF ADDITIONAL SESSIONS COURT (ADHOC)-IV, TRIVANDRUM
AGAINST THE ORDER/JUDGMENT IN CP 168/2003 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II, TRIVANDRUM
APPELLANT/S:
AJAYAN,
S/O RAJU, PURAMPOKKE PUTHEN VEEDU,
PEROORKADA, VATTIYOORKAVU VILLAGE,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.J.DEVADANAM
SRI.PRAMOD J.DEV
RESPONDENT/S:
STATE OF KERALA,
REPRESENTED BY THE EXCISE INSPECTOR,
THIRUVANANTHAPURAM EXCISE RANGE,
THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
SMT. M. K. PUSHPALATHA, SR.PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.A.No.2425 of 2006
-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 12.12.2002 at 4.20 p.m., the
appellant was found in possession of 1.5
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 there is no
evidence to prove the drawing of the sample
and sending the same to the laboratory in a
tamper-proof condition, the appellant is
entitled to be acquitted. It has been
further argued by the learned counsel for
Crl.A.No.2425 of 2006
the appellant that since the detection of
the offence, the seizure of the contraband
and the arrest of the appellant were made by
PW1, who was only an Assistant Excise
Inspector, the appellant is entitled to be
acquitted on that ground as well.
5. PW1 was the detecting officer,
who detected the offence, arrested the
appellant and seized the contraband. PW1
stated that the contraband as such was
seized from the spot. Ext.P7 is the property
list, which would show that a can containing
1.5 litres of arrack was produced before the
court. Ext.P9 is the certificate of
chemical analysis, which would show that one
sealed bottle containing 180 ml of sample
was received in the laboratory. This would
Crl.A.No.2425 of 2006
show that sample was taken from the
contraband after the production of the
contraband before the court. However, the
thondi clerk of the court concerned, who had
drawn the sample, was not examined to prove
the drawing of the sample and sending the
same to the laboratory in a tamper-proof
condition.
6. In Sasidharan v. State of Kerala
[2007 (1) KLT 720], the Court observed thus:
"Without the link evidence of
actual sampling by the concerned
clerk of the court by drawing
sample from the can and sending
the same in a sealed packet to
the Chemical Examiner with a
specimen seal sent separately
for tamper proof despatch, the
Prosecution cannot be held to
have brought home the offence
Crl.A.No.2425 of 2006
against the appellant."
7. 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.
8. Since the Thondi Clerk of the
court was not examined before the court, the
prosecution could not establish the drawing
of the sample from the contraband and
sending the same to the laboratory in a
tamper-proof condition. Consequently, there
is no satisfactory link evidence to show
Crl.A.No.2425 of 2006
that it was the same sample which was drawn
from the contraband seized from the
appellant which eventually reached the hands
of the Chemical Examiner by change of hands
in a tamper-proof condition. In the said
circumstances, the appellant is entitled to
be acquitted.
9. PW1 was the Assistant Excise
Inspector during the relevant period. He
detected the offence, seized the contraband
and arrested the appellant.
10. As per S.R.O.No.234/1967, the
Assistant Excise Inspector was not a
competent and authorised officer under the
Abkari Act during the relevant period.
11. The court in Subrahmaniyan v.
State of Kerala [2010 (2) KHC 552] held
Crl.A.No.2425 of 2006
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
arrest made by the Assistant Excise
Inspector were without authorisation and
jurisdiction.
12. 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.
13. It is in the evidence that PW1
Crl.A.No.2425 of 2006
was only an Assistant Excise Inspector
during the relevant period. The Assistant
Excise Inspector was not a competent and
authorised Officer during the relevant
period under the Abkari Act. Since PW1 was
not an Abkari Officer during the relevant
period, the arrest of the appellant and
seizure of the contraband by PW1 were
without authorization and jurisdiction and
consequently, the conviction and sentence
passed by the court below on the basis of
the said arrest and seizure cannot be
sustained. In the said circumstances also,
the appellant is entitled to be acquitted.
In the result, this appeal stands
allowed, setting aside the conviction and
sentence passed by the court below and the
Crl.A.No.2425 of 2006
appellant stands acquitted. The bail bond
of the appellant stands discharged.
sd/-
B. SUDHEENDRA KUMAR,
JUDGE
STK
