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2021 Supreme(Online)(KER) 45023
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942 CRL.A.No.1834 OF 2007 SC 147/2006 OF III ADDITIONAL SESSUIBS COURT (ADHOC 1), THODUPUZHA CP 83/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I(THODUPUSHA)
APPELLANT/S:
THOMAS, S/O.DEVASSIA, MULLATHARAPPEL HOUSE, PURAPPUZHAKARA, KODIKULAM VILLAGE, THODUPUZHA TALUK.
BY ADV. SRI.P.CHANDY JOSEPH SMT. SAYUJYA, AMICUS CURIAE.
RESPONDENT/S:
STATE OF KERALA REP. BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, THODUPUZHA THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
R1 BY PUBLIC PROSECUTOR OTHER PRESENT:
SMT. M. K. PUSHPALATHA, SR.PP, THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
08.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The appellant was convicted and sentenced by the court below under Sections 8(2) and 55(g) of the Abkari Act.
2.The prosecution allegation is that on 22.6.2004 at about 12.15 hrs., the appellant was found distilling arrack using wash, in contravention of the provisions of the Abkari Act. The appellant was found in possession of 40 litres of wash and 2 litres of arrack at the relevant time.
3. Since there is no representation for the appellant, this Court has appointed Adv.Smt.Sayujya as the Amicus Curiae to argue the case for the appellant.
4. Heard the learned Amicus Curiae and the learned senior Public Prosecutor.
5. The learned Amicus Curiae has argued that since the detection of the offence, the seizure of the contraband and the arrest of the appellant were done by PW1, who was only an Assistant Excise Inspector, the conviction and sentence passed by the court below cannot be sustained.
6. It appears that PW1 detected the offence, seized the contraband, took the sample, arrested the appellant and registered the crime. As per S.R.O. No.234/1967, the Assistant Excise Inspector was not an authorised Officer under the Abkari Act, especially under Sections 4(d) and 70 of the Abkari Act.
7. This court in Subrahmaniyan v. State of Kerala [2010 (2) KHC 552] 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 arrest made by the Assistant Excise Inspector were without authorisation and jurisdiction.
8. 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.
9. In this case, the seizure was effected on 22.6.2004.
During those period, PW1 was only an Assistant Excise Inspector. Therefore, he was not competent to act as an Abkari Officer. Therefore, the seizure of the contraband, the arrest of the appellant and the registration of the crime by PW1, were without authorisation and jurisdiction.
Therefore, the conviction and sentence passed by the court below on the basis of the said seizure and arrest, cannot be sustained and consequently, I set aside the same.
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.
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