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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K. BABU**
**THURSDAY, THE 1ST DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944**
**CRL.A NO. 1210 OF 2007**
**AGAINST THE ORDER/JUDGMENTSC 193/2001 OF ADDITIONAL DISTRICT**
**COURT (ADHOC)-II, KALPETTA**
## **APPELLANT/PETITIONER:**
**MANOJ KUMAR NOOLPUZHA, KALPETTA, WAYANAD.**
**BY ADVS. SRI.T.G.RAJENDRAN SRI.T.R.TARIN**
## **RESPONDENTS:**
- **1 INSPECTOR OF EXCISE EXCISE RANGE OFFICE, SULTHAN BATHERY.**
- **2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.**
## **REKHA -GOVERNMENT PLEADER**
**THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON**
**01.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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**K.BABU, J.**
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## **Criminal Appeal No.1210 of 2007**
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Dated this the 1[st] day of December 2022
## **JUDGMENT**
Aggrieved by the judgment dated 13.06.2007, passed by the Additional Sessions Court (Adhoc-II), Kalpetta in S.C.No.193/2001, the accused has preferred this appeal. The appellant/accused was convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh.
2. The prosecution case is that on 10.12.1999, the accused was found in possession of 5.750 litres of illicit arrack at Kallur in violation of the provisions of the Abkari Act.
3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from where it was made over to the Trial Court. On the appearance of the accused, charge was framed against him for
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the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence.
4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P8 and MOs 1 to 3.
5. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. On the side of defence, DW1 was examined. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence.
6. Heard Sri.T.G Rajendran, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent.
7. The judgment of conviction and sentence is challenged
on the following grounds :
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a) The prosecution failed to rule out the possibility of the sample being changed or tampered with.
b) The prosecution must fail on the ground that the arrest and detection were made by an incompetent officer.
8. The alleged arrest and seizure were effected on 10.12.1999 by the Excise Inspector, Excise Enforcement and Anti Narcotic Special Squad, Wayanad(PW1). According to PW1 the accused was arrested from the place of occurrence and the contraband substance was seized from his possession. PW1 had prepared Ext.P2 seizure mahazar to evidence seizure. PW1 had drawn sample at the scene of occurrence. Ext.P5, list of the properties shows that the properties including the sample were produced before the Court only on 13.12.1999. There is no explanation for the delay in the production of properties including the sample. PW1 stated that he had sent the properties including the sample to the Excise Inspector through another Excise official. PW5 stated that he produced properties before the Court on 13.12.1999.
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## 9. On the question of delay in the production of properties,
## a Division Bench of this Court in **Ravi v. State of Kerala [2011 (3) KHC 121]** held thus:
“8. We, therefore, answer the reference as follows: It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.”
(emphasis supplied)
10. In **Ravi's case** (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be an explanation for the delay when there is delayed production of the property.
11. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with the sample could not be ruled out.
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12. The learned counsel for the accused further contended that the detection was made by an incompetent officer which would result in the collapse of the entire prosecution case. The learned counsel for the appellant relied on SRO.No.234/1967, a Government Notification issued under Section 4 of the Abkari Act, conferring powers to various officers under the Abkari Act. In the present case the offence was detected by PW1, an Excise Inspector of Excise Enforcement and Anti Narcotic Special Squad, Wayanad. The detection was made on 10.12.1999. The Government notification issued as SRO.No.234/1967 had authorised various categories of Excise Officials to discharge the various functions under the Kerala Abkari Act as Abkari Officers. By the said notification only Abkari Officials attached to Excise Range Offices or Circles, or such officers in charge of distilleries, warehouses, wineries, etc., were given powers as Abkari Officers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Excise Officials of special wings or squads like Excise
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Enforcement and Anti Narcotic Special Squad, or the Excise Intelligence Squad were not given such powers under the 1967 Government Notification. In 2009, the Government of Kerala issued another notification, SRO.No.361/2009 dated 08.05.2009, in supersession of the 1967 notification by which special categories like Excise Officials of the Excise Enforcement and Anti Narcotic Special Squad and Excise Intelligence Squad were given powers of Abkari Officers under the Abkari Act. The resultant conclusion is that as on the date of detection in the present case, the detecting officer who was an Excise Inspector, Excise Enforcement and Anti Narcotic Special Squad, Wayanad had no such powers.
13. The learned counsel for the accused submitted that since the detecting officer was an incompetent officer, all further proceedings, in this case, must collapse.
14. The learned counsel for the accused relied on **Suresh v. State of Kerala** [2017 (2) KHC 891] to substantiate his contentions. While dealing with a similar fact situation this Court in **Suresh** 's case (supra) held that a case built on the
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detection made by an incompetent officer will have to collapse necessarily. On this ground also, the prosecution must fail.
15. In the instant case, the delay of more than two years in analysing the sample has not been explained by the prosecution. As the prosecution failed to show that the contraband substance seized from the scene of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory, Ext.P8 Certificate of Chemical Analysis has no evidentiary value.
16. The prosecution was unable to establish the link connecting the accused with the contraband substance seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of the link evidence as discussed above.
17. Resultantly, the conviction and sentence passed by the trial Court cannot be sustained. The accused is acquitted of the offence alleged. He is set at liberty.
The appeal is allowed as above.
**Sd/K.BABU JUDGE**
AP
