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2023 Supreme(Ker) 897

SOPHY THOMAS
Gangadharan, S/o. Lakshmanan – Appellant
Versus
State Of Kerala, Represented By The Public Prosecutor, High Court Of Kerala – Respondent


Advocates Appeared:
For the Petitioner: Sri. Nireesh Mathew.
For the Respondent: Sri. M.C. Ashi.

Judgement Key Points

Based on the provided legal document, here are the key points with corresponding references:

  • Case Details: The case is Gangadharan v. State Of Kerala, Crl. Rev. Pet No.73 Of 2014, decided on 22-12-2023 by the High Court of Kerala at Ernakulam. (!) (!)
  • Subject and Acts: The subject is Criminal Law under the Abkari Act. The judgment refers to Sections 8(1), 8(2), 31, 32, 33, 34, 35, 38, 4, 4(d) to 4(g), 40 to 53, 59 of the Abkari Act and Sections 173(2), 235(1), 313 of the Criminal Procedure Code. (!) (!) (!)
  • Core Holding: The revision petitioner was acquitted because there was no evidence connecting him to the seized contraband, the investigation was delayed significantly, and there were anomalies in the prosecution case. (!) (!)
  • Facts of the Case: On 10.09.2005, a Circle Inspector (PW1) detected illicit arrack in a house belonging to the revision petitioner (A2). The wife of the petitioner (A1) was present and arrested at the spot, but A2 was not present or arrested at the time. (!) (!)
  • Procedural History: The trial court convicted both accused under Section 8(2) of the Abkari Act. The appellate court acquitted the wife (A1) but upheld the conviction of the husband (A2). The husband filed this revision petition. (!) (!)
  • Issue of Competence of PW1: The petitioner challenged PW1's competence to detect the offence, citing Sujith v. State of Kerala. The court held that PW1, as an Excise Circle Inspector, was a competent Abkari Officer under SRO No.234/67, unlike the police officers in Sujith. (!) (!) (!) (!)
  • Role of Special Squads: The court clarified that officers redeployed to Special Squads retain their status as Abkari Officers under Section 4 of the Abkari Act (via SRO 234/67) and do not need further notification, though their function is limited to detection and prevention, not investigation. (!) (!) (!)
  • Anomalies in Prosecution Case:
    • The petitioner was not present at the scene and was never arrested by excise officials despite the offence occurring years prior.
    • Ownership documents (Ext.P8, Ext.P9) only proved the house belonged to him, but no evidence showed he had dominion or control over the contraband.
    • Independent witnesses turned hostile and could not identify the petitioner as he was never arrested. (!) (!) (!) (!)
  • Delay in Investigation: The investigation took two years (from 10.09.2005 to 28.09.2007). The court held this unexplained delay violated Section 50 of the Abkari Act and was fatal to the prosecution case. (!)
  • Non-Examination of Investigating Officer: The investigating officer (CW9) was not examined, causing prejudice to the accused as he could not confront the officer regarding defects in the case and the petitioner's identity. (!)
  • Lapse in Documentation: A property list showing when the contraband and sample were produced before the court was missing, constituting a serious lapse. (!)
  • Final Decision: The impugned judgments of conviction and sentence were set aside. The revision petitioner was acquitted under Section 235(1) of Cr.P.C., and his bail bond was cancelled. (!) (!)

ORDER :

This revision is at the instance of the 2nd accused in SC No.55 of 2008 on the file of Assistant Sessions Judge (Principal), Palakkad, assailing the judgment in Crl.Appeal No.500 of 2011 on the file of III Additional District and Sessions Judge, Palakkad, which upheld his conviction and sentence under Section 8(2) of the Abkari Act.

2. The prosecution case is that, on 10.09.2005 at about 6 a.m, PW1-Circle Inspector of Excise, Palakkad Excise Enforcement & Anti Narcotic Special Squad, while conducting patrol duty along with other officials in the Squad, got reliable information that arrack has been stored by the 1st accused in House No.V/342 of Peringottukurissi Panchayath. After sending search memo to court, PW1 and party conducted search in that house and found out a 5 litre can full of illicit arrack. That house belonged to the revision petitioner (A2). The 1st accused, who is the wife of the revision petitioner (A2), was present in that house at the time of search and seizure, and she was arrested at the spot. After completing the legal formalities like sampling, labelling

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