Murukan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 9TH DAY OF FEBRUARY 2017/20TH MAGHA, 1938 CRL.A.No. 541 of 2007 ( ) -------------------------SC 1005/2005 of ADDITIONAL DISTRICT COURT (ADHOC), PALAKKAD APPELLANT: ------------------- MURUKAN, S/O.KARIMAN, KUTHIRAMOOLI, NENMENI DESOM, KOLLENGODE VILLAGE,, CHITTUR TALUK, PALAKKAD DISRICT. BY ADV. SRI.K.P.BALAGOPAL RESPONDENT: --------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY GOVERNMENT PLEADER, SHRI C K PRASAD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl. Appeal No.541 of 2007 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of February 2017 ## 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 23.10.2002 about 6 p.m., the appellant was found in possession of 2.5 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 PW1 was only an Assistant Excise Inspector not empowered under the Act to seize the contraband and arrest Crl.A.541/2007 : 2 : the appellant, the appellant is entitled to be acquitted. It has been further argued by the learned counsel that since different crime number is written in Ext.P5 certificate of chemical analysis, there cannot be any guarantee that the sample analysed in the laboratory was the sample drawn from the contraband seized from the appellant and in the said circumstances also, the appellant is entitled to benefit of doubt. 5. S.R.O. No.361/2009 dated 8.5.2009 came into force only with effect from 8.5.2009. As per the said S.R.O., the Assistant Excise Inspector of the Range was empowered to exercise all powers and perform all duties of the Excise Inspectors subject to the control of the Excise Inspectors. Crl.A.541/2007 : 3 : However, the S.R.O. prevailing during the time of commission of this offence was S.R.O. No.234/1967, as per which the Assistant Excise Inspector was not an Abkari Officer empowered to exercise the powers and perform the duties under the Abkari Act. 6. 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 was without authorisation and jurisdiction. 7. The court in Sasidharan v. State of Kerala [2012 (2) Crl.A.541/2007 : 4 : 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. 8. In this case, the incident was on 23.10.2002, which was prior to the notification, namely S.R.O.No.361/2009. The seizure of the contraband, sampling and the arrest of the appellant in this case were made by PW1, who was only an Assistant Excise Inspector. Therefore, it has to be held that PW1, the Assistant Excise Inspector, who had made the arrest of the appellant, seizure of the contraband and the sampling, was not empowered under the Act as it Crl.A.541/2007 : 5 : stood then, to perform the duties under the Abkari Act. In the said circumstances, the arrest of the appellant, seizure of the contraband and the sampling made by PW1 were without jurisdiction. In the said circumstances, the appellant is entitled to be acquitted. 9. The property list is not marked before the court. However, the property list transmitted to this court along with the records would show that the contraband articles were produced before the court only on 28.10.2002. No explanation had been given by PW1 as to why there was delay in producing the contraband and the sample before the court. PW1 stated that there was no reason for the delay in producing the contraband and the sample before ## Crl.A.541/2007 : 6 : the court. Since there was unexplained delay in producing the contraband and the sample before the court, there cannot be any guarantee that the sample produced before the court and analysed in the laboratory was the sample drawn from the contraband seized from the appellant and consequently, the appellant is entitled to benefit of doubt. 10. Ext.P4 is the copy of the forwarding note in which the place meant for writing the name of the Excise Guard with whom the sample was sent to the laboratory remains blank. The date of despatch of the sample to the Crl.A.541/2007 : 7 : laboratory is also not shown in Ext.P4 copy of the forwarding note. The learned Magistrate also did not put the dated initial on Ext.P4 Forwarding note. This court in Kumaran P. v. State of Kerala and another [2016 (5) KHC 632] held that in such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise guard concerned to prove the tamper - proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper - proof despatch of the sample to the laboratory. 11. It is also to be noted that Ext.P5 certificate of Crl.A.541/2007 : 8 : chemical analysis would show that the sample received therein was the sample in crime No.15/92 of Kollengode Excise Range. At the top of Ext.P5, it is written that the letter was received in Crime No.16/02 of Kollengode Excise Range office. The crime number of this case is 15/2002, which is not seen written in Ext.P5. Since different crime numbers are written in Ext.P5, the matter should have been clarified by examining the Assistant Chemical Examiner, who had issued Ext.P5 certificate. However, he was not examined to prove that Ext.P5 is the certificate relating to this case. In view of the above reasons, there cannot be any guarantee that Ext.P5 certificate of Chemical Analysis relates to the case in hand ## Crl.A.541/2007 : 9 : and consequently, the appellant is entitled to benefit of doubt on this ground as well. In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below under Section 8(2) of the Abkari Act and the appellant is acquitted for the said offence. The bail bond of the appellant stands discharged. Sd/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/.9.2.2017_ _// True Copy //_ _PA to Judge_