John, S/o Yagappan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 13TH DAY OF OCTOBER 2020 / 21ST ASWINA, 1942** ## **CRL.A.No.1740 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 577/2001 DATED 26-08-2006 OF ADDITIONAL S.C.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA** **AGAINST THE ORDER/JUDGMENT IN CP 153/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,NEYYATTINKARA** ## **APPELLANT/S:** **JOHN, S/O. YAGAPPAN, PUTHUVAL PUTHEN VEEDU, KIDARAKUZHY, VENKADABU DESOM, KULATHOOR VILLAGE.** **BY ADV. SRI.BLAZE K.JOSE** ## **RESPONDENT/S:** **STATE OF KERALA REP. BY THE SUB INSPECTOR OF POLICE, POZHIYOOR, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.K.B.UDAYAKUMAR, SR.GP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A. No.1740 of 2006 2 ## **P.V.KUNHIKRISHNAN, J. ==================== Crl.A. No.1740 of 2006 ==================== Dated this the 13[th] day of October, 2020** ## **J U D G M E N T** The appellant is the accused in S.C No. 577 of 2001 on the file of Additional Sessions Judges for the trial of Abkari Act cases, Neyyattinkara. The above case is charge sheeted by the Circle Inspector of Police, Pozhiyur alleging offence punishable under Section 55 (a) of the Kerala Abkari Act. 2. The prosecution case is that, the Assistant Sub Inspector of Police, Pozhiyur police station searched the house of the appellant on 11.09.1998 at about 9.35 a.m. Officer searched the house based on an information that spirit is concealed in the house of the appellant. On search at the eastern side of the house, it was found a cell when six bricks at the eastern wall was removed. Four white jerry cans found in it. Each of the can was containing 35 liters of spirit. Hence, the above case is Crl.A. No.1740 of 2006 3 registered. 3. To substantiate the case, the prosecution examined PW1 to PW8. Exts. P1 to P6 are the exhibits marked on the side of the prosecution. Exts. C1 and C2 are the court exhibits. Exts. X1 and X2 are also marked. MO1 to MO4 are the material objects. 4. on going through the evidence and documents, the trial court found that the accused committed the offence under Section 58 of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of 6 years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused was directed to undergo rigorous imprisonment for one year. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant submitted that, the entire prosecution is vitiated for the simple reason that, the Assistant Sub Inspector conducted search in the premises, who is not authorized as per the Crl.A. No.1740 of 2006 4 Abkari Act. The learned counsel also submitted that, the forwarding note is not marked in this case. 7. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the case. The learned Public Prosecutor submitted that, this court may not interfere with the trial court judgment on technical grounds. 8. The point for consideration in this appeal is whether the appellant/accused committed the offence under Section 58 of the Abkari Act. 9. Admittedly, CW5 Assistant Sub Inspector detected the offence. The Assistant Sub Inspector is not authorized to conduct the search and seizure as per the Abkari Act, because he is not an authorized person. 10. In this case, the part of the investigation was conducted by PW6, the Assistant Sub Inspector of Police. 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, Crl.A. No.1740 of 2006 5 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 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_ Crl.A. No.1740 of 2006 6 _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 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.” The same point was considered by this Court in Subash v. 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). ”_ 11. It is also to be noted that the forwarding note is not marked in this case. The forwarding note is an important document which will prove the links staring from the seizure of the contraband till it reaches in the hands of the analyst. The forwarding note an important document which is to be marked by the prosecution. 12. In abkari cases, forwarding notes is important because the specimen seal used by the detecting officer Crl.A. No.1740 of 2006 7 will find a place in it. It is the fundamental duty of the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the analyst. Forwarding note is one of the links to prove the prosecution case in abkari cases. 13. This Court in several decisions considered the relevancy of the forwarding note. Some of the decisions are _**Gireesh @ Manoj v. State of Kerala (2019(4) KLT 79), Vijayan @ Pattalam Vijayan and another v. State of Kerala (2018 (2) KHC 814) and Prakasan and another v. State of Kerala (2016 KHC**_ _**96)**_ . The relevant portion of the judgment in _**Gireesh's case**_ (supra) extracted hereunder: “14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by PW5 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical Crl.A. No.1740 of 2006 8 examiner for analysis in a tamper proof condition _**(See Prakasan v. State of Kerala (2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16))**_ .” 14. In the light of the above discussions, I think the appellant is entitled to the benefit of doubt. Of course, the allegation against the appellant is very serious. But an unauthorised person conducted the search. Therefore, this criminal appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 26.08.2006 in S.C. No. 577 of 2001 on the file of Additional Sessions Judges to the trial of Abkari Act cases, Neyyattinkara is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is canceled. **(Sd/-) P.V.KUNHIKRISHNAN, JUDGE** LU