Ayyadurai and Sekhar v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2020-09-14
Court Decision / Holding: Appeal allowed; conviction and sentence under Section 8(2) of the Abkari Act set aside; appellants acquitted; bail bonds discharged.
Final Disposition: Appeal allowed; conviction and sentence set aside; appellants acquitted; bail bonds discharged.

Parties to the Case

Appellants / Petitioners

Ayyadurai S/o Periyakaruppathevar
Sekhar S/o Ramaswami

Respondents

State of Kerala, rep. by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri Saji Mathew

Counsels for Respondents

• Public Prosecutor, High Court of Kerala

Case Synopsis & Summary

This criminal appeal challenges a conviction under Section 8(2) of the Abkari Act by the IV Additional Sessions Court, Thodupuzha. On 12 January 2005 at about 5:30 pm, police allegedly found 7.5 litres of arrack in the appellants’ possession in contravention of the Abkari Act. Prosecution examined PW1–PW4 and marked Exts P1–P7; no evidence was adduced on behalf of the defence. The appellants contend that the arrest, seizure and investigation were conducted by an Assistant Sub Inspector of Police, who was not an Abkari Officer, rendering the arrest and seizure unlawful and void. PW4 performed most of the investigation, and the final report was filed by a Sub Inspector who was not examined. The State relies on S.R.O. 321/96, which empowers police officers of the rank of Sub Inspector and above to exercise Abkari duties; however, it is argued that the Assistant Sub Inspector was not included as an Abkari Officer. Relying on Subrahmaniyan v. State of Kerala and Sasidharan v. State of Kerala, the court held that Assistant Sub Inspectors were not empowered to perform key Abkari duties prior to 8 May 2009. Consequently, the arrest, seizure, and investigation were unauthorized, the conviction cannot stand, and the appeal is allowed with acquittal and discharge of bail bonds.

Provisions of Law Cited

Abkari Act, Section 8(2)S.R.O. No. 321/96S.R.O. No. 234/1967Sections 4(d) and 70 of the Abkari ActSections 31, 32, 34, 35 and 38 to 53 of the Abkari Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the arrest, seizure and investigation were carried out by an Assistant Sub Inspector of Police who was not an Abkari Officer and, therefore, the act was void for lack of competent authority. They relied on Subrahmaniyan v. State of Kerala to demonstrate that ASIs were not empowered Abkari Officers and argued that the major part of investigation was conducted by PW4, rendering the conviction unsustainable given the lack of authority and jurisdiction.

Contentions of Respondents

The State argued that the authorities empowered under S.R.O. No. 321/96 allowed Sub Inspectors and above to perform Abkari duties; it was argued that the evidence, including seizure and arrest by an officer in the investigations chain, should be considered valid unless proven otherwise by specific jurisdictional flaws. The State relied on precedents and the sufficiency of eyewitness testimony to sustain the conviction.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Subrahmaniyan v. State of Kerala	2010 (2) KHC 552	Positive	The court cited Subrahmaniyan to hold that an Assistant Excise Inspector was not an authorised Abkari Officer, thereby supporting the argument that the arrest/seizure by an ASI lacked jurisdiction.
Sasidharan v. State of Kerala	2012 (2) KLT 392	Positive	The Sasidharan decision quoted Subrahmaniyan with approval and extended the principle that Assistant Excise Inspectors were not empowered to perform key Abkari duties prior to 8 May 2009, reinforcing the lack of authority in the present case.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY, THE 14TH DAY OF SEPTEMBER 2020 / 23RD BHADRA, 1942** ## **CRL.A.No.2443 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 530/2006 DATED 24-11-2007 OF IV ADDITIONAL SESSIONS COURT (ADHOC-II), THODUPUZHA** ## **APPELLANT/S:** **1 AYYADURAI, S/O. PERIYAKARUPPATHEVAR, NADUTHERUVU BHAGAM, PUTHUKKOTTU VILLAGE, TAMIL NADU, NOW RESIDING AT HOUSE NO.RGP II/114,, KHAJANAPPARA KARA, RAJKUMARY VILLAGE. 2 SEKHAR, S/O RAMASWAMI, RGP II/306, KHAJANAPPARA KARA, RAJAKUMARY VILLAGE. BY ADVS.SRI.SAJI MATHEW** ## **RESPONDENT/S:** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SMT.SREEJA.V, PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **CRL.A.No.2443 OF 2007** -2- ## **JUDGMENT** **The appellants were convicted and sentenced by the court below under Section** ## **8(2) of the Abkari Act.** **2. The prosecution allegation is that on 12.01.2005 at 5.30 p.m., the appellants were found in possession of 7.5 litres of arrack in contravention of the provisions of the Abkari Act. 3. Before the trial court, PW1 to PW4 were examined and Exts.P1 to P7 were marked for the prosecution, besides identifying MO1 and MO2. No evidence was adduced on the side of the defence.** **4. Heard.** ## **CRL.A.No.2443 OF 2007** -3- **5. The learned counsel for the appellants has argued that since the arrest of the appellants and the seizure of the contraband were done by the Assistant Sub Inspector of Police, who was not an Abkari Officer, the appellants are entitled to be acquitted. PW1 to PW3 were the independent witnesses examined by the prosecution to prove the occurrence. They did not support the prosecution case. PW4 was the Assistant Sub Inspector of Police, who detected the offence, seized the contraband and arrested the appellants from the spot. It appears that he had also conducted the major part of the investigation. It appears from the final** ## **CRL.A.No.2443 OF 2007** -4- **report that all the witnesses were questioned and their statements were recorded by PW4. Thereafter, the final report was filed by the Sub Inspector of Police, who was not examined.** **6. As per S.R.O. No.321/96, all Police Officers of and above the rank of Sub Inspector of Police in charge of law and order and working in the General Executive Branch of the Police Department were empowered to exercise all powers and perform all duties of the Abkari officers. The Assistant Sub Inspector of Police was not included as an Abkari Officer in S.R.O. No.321/96. The learned Public Prosecutor** ## **CRL.A.No.2443 OF 2007** -5- **has submitted that thereafter also, no notification was issued making the Assistant Sub Inspector of Police as an Abkari Officer under the Act.** **7. In a similar situation, the 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** ## **CRL.A.No.2443 OF 2007** -6- **of Kerala [2012 (2) KLT 392] quoted the decision in Subrahmaniyan (supra) with approval 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, PW4 was the Assistant Sub Inspector of Police, who detected the offence. He also seized the contraband and arrested the appellants from the spot. The major part of the investigation was also conducted by PW4. However, since PW4 was only an Assistant Sub Inspector of Police, he was not having** ## **CRL.A.No.2443 OF 2007** -7- **the powers to act as an Abkari officer. Since PW4 was not an Abkari Officer, he was not competent to effect seizure of the contraband article, arrest the appellants and conduct the investigation. In the said circumstances, the arrest of the appellants, the seizure of the contraband and the investigation were done by PW4 without authorisation and jurisdiction and consequently, the conviction and sentence passed by the court below on the basis of the said arrest, seizure and investigation cannot be sustained and consequently, I set aside the same.** **In the result, this appeal stands** ## **CRL.A.No.2443 OF 2007** -8- **allowed, setting aside the conviction and sentence passed by the court below under Section 8(2) of the Abkari Act and the appellants stand acquitted for the said offence. The bail bonds of the appellants stand discharged.** **Sd/-** **B. SUDHEENDRA KUMAR, JUDGE** STK