A.K. Varghese v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 16TH DAY OF DECEMBER 2020 / 25TH AGRAHAYANA, 1942** ## **CRL.A.No.1664 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 264/2003 DATED 28-07-2006 OF ADDITIONAL SESSIONS JUDGE (ADHOC)-I, KALPETTA** ## **APPELLANT/ACCUSED:** **A.K.VARGHESE, S/O.KURIAKOSE, POOTHADI, WAYANAD DISTRICT.** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENT/STATE:** **THE STATE OF KERALA** **BY THE SUB INSPECTOR OF POLICE,, KENICHIRA POLICE STATION-THROUGH THE PUBLIC, PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, OCHI-31.** ## **OTHER PRESENT:** ## **R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.1664 OF 2006** 2 ## **JUDGMENT** **Dated this the 16th day of December 2020** Appellant is the accused in S.C.No. 264/2003 on the file of the Additional Sessions Judge (Adhoc)-I, Kalpetta. Above case is charge sheeted by the Sub Inspector of Police, Kenichira Police Station, alleging offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that, on 18-01-2002 at about 11 p.m. the accused was found keeping 20 packets containing Karnataka arracks each packet contains 100ml. Capacity, in contravention of the Kerla Abkari Act. Hence it alleged that the accused committed offence punishable under Section 55 (a) of the Abkari Act. 3. To substantiate the case, prosecution examined PW1 to PW8. Exts.P1 to P8 are the documents marked on the side of the prosecution. MO1 to MO3 are the material object. After going through the evidence and the documents, the trial court found that the accused committed the offence punishable under Section **CRL.A.No.1664 OF 2006** 3 55(a) of Abkari Act. He is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for three months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 4. Heard the learned counsel for the appellant and the learned Public prosecutor. 5. The learned counsel for the appellant submitted that, the entire trial in this case is vitiated for the simple reason that the search, seizure and arrest in this case is by an Assistant Sub Inspector, who is examined in this case as PW5. The learned counsel also submitted that there is a delay of 5 days in producing the contraband before the Court. On that ground also the appellant is entitled the benefit of doubt. 6. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the offence against the appellant in this case and there is nothing to interfere with the conviction and sentence imposed on the appellant. The learned Public Prosecutor submitted that, this Court may not interfere with the conviction and sentence imposed by the trial Court on **CRL.A.No.1664 OF 2006** 4 technical grounds. 7. The point for consideration in this case is whether the accused committed the offence punishable under Section 55 (a) of the Abkari Act. 8. Admittedly, PW5 the Assistant Sub Inspector conducted the search, seizure and arrest in this case. An Assistant Sub Inspector is not an authorised person to conduct search, seizure and arrest in abkari cases. This point is considered by this Court in several judgments. If an unauthorized person conducted search, seizure and arrest, the entire trial will be vitiated for that simple reason. Whether the Assistant Sub Inspector is authorised to conduct investigation in an abkari case was considered by this Court in several judgments. In _**Omana v. State of Kerala (2015 KHC 1000),**_ it is held that if detection, arrest, seizure and investigation in an abkari case is conducted by the Assistant Sub Inspector, the same will vitiate the trial. Relevant portion of the judgment is extracted hereunder: “14. Further in this case it is seen from the evidence that the detection, arrest, seizure and investigation etc, were done by the Assistant Sub Inspector of Police who is not an Abkari Officer empowered to arrest and effect seizure **CRL.A.No.1664 OF 2006** 5 and conduct investigation under S.34 of the Abkari Act. The Assistant Sub Inspectors of Police were not authorised as Abkari Officers to exercise the powers of Abkari Officer under the Act. The Court below had come to the conclusion that since the Assistant Sub Inspectors were also vested with the power under S.4 and S.5 of the Abkari Act, though they are not covered by the notification they can detect and arrest and effect seizure in Abkari offences. But that was found to be not correct in the decision reported in Sabu v. State of Kerala (2007(3) KHC 753 : 2007(4) KLT 169 : 2007(2) KLD 259 : ILR 2007(3) Ker. 763 : 2007(3) KLJ 157), in which it was observed that the Assistant Sub Inspector of Police is not an authorised officer empowered to detect and investigate an offence under the Abkari Act as he was not covered by the notifications issued by the Government in this regard, viz, SRO 321/1996. Further in this case there is no document produced on the side of the prosecution to prove that PW5 was in charge of the Police Station in the absence of PW6, getting the powers of the Station House Officer to detect the crime. Such an evidence is also not available in this case. Further the dictum laid down in the decision reported in Sabu v. State of Kerala (2007(3) KHC 753 : 2007(4) KLT 169 : 2007(2) KLD 259 : ILR 2007(3) Ker. 763 : 2007(3) KLJ 157] was approved by the Division Bench of this Court in Subash v. State of Kerala [2008(2) KHC 703 : 2008(2) KLT 1047 : 2008(2) KLD 67]. So merely because the investigation was verified and final report was filed by PW6 the Abkari Officer will not validate the act of seizure and arrest made by PW5 the Assistant Sub Inspector of Police who is not an Abkari Officer and as such no conviction can be based on such arrest and seizure. If seizure is **CRL.A.No.1664 OF 2006** 6 found to be done by a person who is not to empowered to effect seizure, then the seizure is bad in law, and no conviction can be based on such seizure made by an incompetent person.” 9. The same point was considered by this Court in _**Subash v. CRL.A.No.1593 OF 2005 6 State of Kerala (2008(2) KHC 703), Biju and others v. State of Kerala (2011(1) KHC 518) and Chandrababu v. State of Kerala (2016(2) KLT 842).**_ 10. Moreover the seizure of the contraband in this case was on 18.01.2002. The sample reached the court only on 23.01.2002. There is no explanation from the part of the prosecution regarding the delay in producing the sample before the court. This point is also considered by this Court in _**Sukumaran v. State of Kerala (2019(3) KLT 920), Ravi v. State-Sub Inspector of Police, Meppadi (2018(5) KHC 352) and Vikraman v. State of Kerala (2018(1) KLT 822).**_ Relevant portion of the judgment in _**Ravi'**_ s case (supra) is extracted hereunder: “8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) **CRL.A.No.1664 OF 2006** 7 Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt. 9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note.” 11. As I observed earlier, the seizure in this case was on 18-01-2002. A perusal on Ext.P6 the property list will show that the property reached the Court only on 23-01-2002. The only explanation from PW5 for the delay in producing the contraband before the Court, is that he was busy in his work. That is not a reason for the delay in producing the contraband articles. The statute mandate that the property should be produced before the Court forthwith. Even a days delay is fatal. The prosecution has to prove that the seized articles reached in the hands of the analysts . In abkari cases the prosecution has to prove that the contraband seized is a liquor as defined in the Abkari Act. **CRL.A.No.1664 OF 2006** 8 Therefore, the links starting from seizure till it reaches in the hands of the analysts is to be proved by the prosecution. 12. Admittedly there is delay of 5 days in producing the contraband before the Court. There is no proper explanation for the same. That is fatal to the prosecution. 13. In the light of the above discussion, I think the appellant in this case is entitled the benefit of doubt. Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the accused as per the judgment dated 28-7-2006 in S.C. No. 264/2003, on the file of the Additional Sessions Judge (Adhoc)-I, Kalpetta, is set aside. The appellant is set at liberty. The bail bond if any, executed by the appellant, is cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** **sa**