Kerala High Court

T.Kunhikannan vs State Of Kerala on 20 January, 2025

                                               2025:KER:4164



         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

          THE HONOURABLE MR.JUSTICE K.V.JAYAKUMAR

   MONDAY, THE 20TH DAY OF JANUARY 2025/30TH POUSHA, 1946

                CRL.REV.PET NO.2175 OF 2012

      AGAINST THE ORDER/JUDGMENT DATED 17.08.2012 IN Crl.A
NO.84 OF 2011 OF ADDITIONAL DISTRICT COURT (ADHOC-III),
KASARAGODE   ARISING  OUT   OF  THE   ORDER/JUDGMENT DATED
10.03.2011 IN SC NO.292 OF 2008 OF ASSISTANT SESSIONS
COURT/SUB COURT/COMMERCIAL COURT, KASARAGOD

REVISION PETITIONER/APPELLANT/ACCUSED:

         T.KUNHIKANNAN
         AGED 43 YEARS
         S/O.RATNAM, PUTHIYADUKKAM, BEDAKAM VILLAGE,
         KASARAGOD TALUK AND DISTRICT.


         BY ADVS.
         SRI.I.V.PRAMOD
         SRI.MANSOOR.B.H.
         SRI.B.VINOD



RESPONDENT/RESPONDENT/COMPLAINANT:

         THE STATE OF KERALA
         REPRESENTED BY THE PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, ERNAKULAM-682031.


         PP SMT MAYA M N
                                                    2025:KER:4164
Crl.RP No.2175 of 2012
                               2

     THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION   ON   20.01.2025,   THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
                                                          2025:KER:4164
Crl.RP No.2175 of 2012
                                   3

                               ORDER

Dated this the 20th day of January, 2025

This criminal revision petition is preferred impugning the

judgment of the learned Additional Sessions Judge, Ad-Hoc-III

Kasargod in Criminal Appeal No.84/2011.

2. The revision petitioner herein is the sole accused in

Crime No.19/2007 of Bandaduka Excise Range, registered for

offence punishable under Section 55(a) of the Kerala Abkari Act.

` 3. The prosecution case is that, on 26.10.2007 at about

11.30 a.m, the petitioner was found transiting 3 litres of illicit arrack

in a 5 litre white plastic can at Puthiyadukkam in Bedakam Village,

Kasaragod Taluk, in contravention of the provisions of the Kerala

Abkari Act.

4. The trial court convicted and sentenced the accused to

undergo four years of rigorous imprisonment and a fine of

Rs.1,00,000/-.

5. The appellate court confirmed the sentence.

6. Impugning the judgment of the learned Additional 2025:KER:4164

Sessions Judge, Kasaragod, the accused preferred this revision.

7. Before the trial court, PWs.1 to 4 were examined and

marked Exts.P1 to P11. No material objects were produced or

marked from the side of the prosecution. PW.1 is the preventive

Officer, Bandaduka Excise Range, who arrested the accused and

seized contraband articles. PW2 is the Excise Guard, who

accompanied PW1 in the detections. PW3 is an independent

witness, who turned hostile. PW4 is the Excise Range Inspector,

Bandaduka. PW4 conducted the investigation and filed the final

report.

8. After hearing both sides, the learned Assistant Sessions

Judge, Kasaragod convicted and sentenced the accused as

aforesaid.

9. Impugning the order of the learned Assistant Sessions

Judge, the accused preferred Crl.Appeal.No 84/2011 which was

dismissed confirming the conviction and sentence.

10. I have heard Adv. Smt. Maya M.N, the learned Public

Prosecutor and Adv. I.V Pramod, the learned Counsel appearing for

the revision petitioner.

2025:KER:4164

11. The learned Public Prosecutor submitted that the

impugned order is legally sustainable and no interference,

whatsoever, is warranted in this matter. She further submitted that,

the prosecution has succeeded in alleging and proving the charge

against the revision petitioner.

12. Per contra, the learned counsel for the revision

petitioner submitted that the impugned order is illegal, irregular and

improper. Both the trial court and the appellate court had failed to

note the illegalities and improprieties in this case.

13. He further submitted that the prosecution has failed to

allege and prove the charge against the accused beyond reasonable

doubt. He submitted that the penal statutes are to be interpreted

strictly within the four corners of the statute. Suspicion, however

shown it may be, would not substitute for proof. The impugned

judgment is based on surmises and conjectures.

14. Before further discussion, it may be fruitful to extract

Section. 55 (a) of the Kerala Abkari Act.

For illegal import,etc - Whoever in contravention of this Act or of any rule or order made under this Act.

(a) imports, exports, (transports, transits or possesses) liquor 2025:KER:4164

or any intoxicating drug; or

(b) manufactures liquor or any intoxicating drug;

(d) (taps or causes to be tapped) any toddy producing tree, or

(e) (draws or causes to be drawn) toddy from any tree; or

(f) constructs or works any (distillery, brewery, winery or other manufactory in which liquor is manufactured); or

(g) uses, keeps, or has in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing liquor other than toddy or any intoxicating drug; or

(h) bottles any liquor for purposes of sale; or (I) sells or stores for sale liquor) or any intoxicating drug;) (shall be punishable)

15. I have heard the rival submission of the counsel for

the parties and perused the records.

16. The learned Counsel for Revision Petitioner submitted

that inventory in this case was prepared by Excise Inspector who is

not authorized and empowered to prepare inventory under Section

53 A of the Abkari Act. The learned Counsel has placed reliance on

a decision reported in Kusuma V. State of Kerala (2022 (4) KLT

657). The relevant paragraph of this judgment are extracted here

under.

2025:KER:4164

"7. While assalling the judgment of the trial court, the learned counsel for the appellant argued that in this matter, the inventory marked as Ext.P6 was prepared by PW2, the Excise Inspector himself in violation of the mandate of Section 67B of the Kerala Abkari Act. According to the learned counsel for the appellant, as per Section 67B of the Kerala Abkari Act, the authorised officer must be an officer authorised by the Government by notification in the Gazette and the said officer is an officer not below the rank of an Assistant Excise Commissioner. In support of this argument, decision of this Court reported in Chandran v. State ((2016) 4 KLT

727) is placed by the learned counsel for the appellant.

8. The learned Public Prosecutor also not disputed the legal position and she also submitted that the legal position as argued by the learned counsel for the appellant is not changed so far.

9. Going by the decision highlighted by the learned counsel for the appellant, subsequently followed in the decision reported in Balakrishna Rai v. State of Kerala((2020) 3 KLT 727), the legal position is emphatically clear that Section 53A(2) of the Kerala Abkari Act mandates that the inventory shall be prepared by the authorised officer. Section 678 provides that the authorised officer must be an officer authorised by the Government by notification in the Gazette and the said officer is an officer not below the rank of Assistant Excise Commissioner.

10. SRO 671/75 provides that Assistant Commissioners in-charge of Excise Divisions are authorised officers under sub-section(1)of Section 67B of Abkari Act for the purpose of Section 67B within their respective jurisdiction".

17. In fact, the inventory under Section 53 A of the Kerala

Abkari Act is to be prepared by an officer not below the rank of

Assistant Excise Commissioner. In the instant case, it was prepared 2025:KER:4164

by the Excise Inspector. If the law prescribes a thing is to be done by

a particular officer, that should be done by that officer alone. If it is

done by some other officer below the rank of the Officer authorized,

it is an illegality.

In the light of the above discussion, I am of the considered

opinion that the impugned order is liable to be set aside. Both the

trial court and the appellate court overlooked serious illegalities

which cut the very root of the prosecution story.

In the result,