Ajayan v. State of Kerala

## **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** -3- **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** -4- **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** -5- ## **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 tamperproof 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** -6- **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** -7- **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** -8- **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** -9- # **appellant stands acquitted. The bail bond of the appellant stands discharged.** sd/- **B. SUDHEENDRA KUMAR, JUDGE** STK