MUTTAYAH AND BALAKRISHNAN v. STATE OF KERALA

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN ## MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 ## CRL.A.No. 136 of 2008() ## ----------------------- ## SC.377/2006 of THE ADDITIONAL SESSIONS COURT (SPL. COURT FOR NDPS ACT CASES), THODUPUZHA .................... ## APPELLANT): ACCUSED --------------------- ## 1. MUTTAYAH, S/O.JOHN, THEKKETHERUVU BHAGAM, RUGMINIYARPURAM KARA, OOTHAMALA GRAMAM, THENKASI TALUK, THIRUNELVELI DISTRICT. 2. BALAKRISHNAN, S/O.KARIYAMALAI, CP-II, KARUPPAN COLONY, SOORYANELLI KARA, CHINNAKKANAL VILLAGE. BY ADV. SRI.SHIRAZ ABDULLA SRI.JOJO PAPPACHAN ## RESPONDENTS: COMPLAINANT -------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. LOWSY. A THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARED ON ON 24/10/2011, ALONG WITH CRL.A.NOS.2932 & 2969/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## V.K.MOHANAN, J. ------------------------------------------------------Crl.A.Nos.136, 2932 & 2969 of 2008 -----------------------------------------------------Dated the 24th day of October, 2011 ## JUDGMENT As the impugned judgment in the above appeals, i.e., CRL.A.Nos.136 of 2008, 2932/2008 is one and the same and Crl.A.No.2969/2008, arising out of an order passed in an M.C proceedings in the very same Sessions Case, and the facts and circumstances involved in the above cases are identical, these appeals are heard together and are being disposed of by this common judgment. 2. By the judgment dated 30.11.2007 in S.C.No.377 of 2006 on the file of the Additional Sessions Judge (Special Judge for N.D.P.S Act cases), Thodupuzha, the learned Sessions Judge convicted the accused, two in numbers, for the offences under sections 8(1) and (2) and 55(g) of the Abkari Act and accordingly, both the accused are sentenced to undergo rigorous imprisonment for two years each and they are also sentenced to pay a fine of Rs.1,00,000/- (Rs.one lakh only), in default of payment of fine, each of them are directed to undergo simple imprisonment for a further period of 6 months. Accordingly, by CRA No.136/08 & Co cases. - **2-** challenging the above judgment, the accused preferred Crl.A.No.136 of 2008. 3. When Crl.A.No.136 of 2008 came up for admission, this Court has admitted the same and suspended the execution of the sentence imposed against accused vide order dated 21.1.2008 in Crl.M.A.No.535/2008. Though the first appellant/A1 in Crl.A.No.136/2008 has got such an order, he could not comply with the condition stipulated therein and therefore, he was consequently arrested and detained in custody. Thus he is undergoing the imprisonment. Thus while he is undergoing imprisonment, he preferred the jail appeal i.e., Crl.A.No.2932 of 2008. The 2[nd] appellant/A2 was released on bail on the strength of the above order in the above appeal. 4. Since there was default on the part of the 2[nd] appellant/A2 in Crl.A.No.136/2008 in appearing before the trial court, proceedings were initiated against him under section 446 of Cr.P.C which finally resulted in an order dated 20.2.2008 in M.C.No.4/2008 in S.C.No.377 of 2006 of the court of II Additional Sessions Judge (Special Judge for NDPS Act Cases), Thodupuzha. Challenging the above order of the trial court , the 2[nd] accused, CRA No.136/08 & Co cases. - **3-** who is the 2[nd] appellant in Crl.A.No.136 of 2008 preferred Crl.A.No.2969 of 2008. This court by order dated 19.12.2008 in Crl.M.A No.12645/2008 in Crl.A No.2969/2008, execution of the impugned order therein was suspended on condition of depositing a sum of Rs.7500/-. Thus the challenge in Crl.A.No.136 of 2008 is the conviction and sentence imposed against accused Nos.1 and 2 in the above Sessions case and the challenge in Crl.A.No.2932/2008 is also against the conviction and sentence of the Ist accused in the very same Sessions Case, whereas the challenge in Crl.A.No. 2969/2008 is against the order issued under section 446 Cr.P.C against the 2[nd] accused who is the 2[nd] appellant in Crl.A.No.136/2008. 5. I have heard Sri Shiraz Abdulla M.S., the counsel appearing for the appellants and the learned Public Prosecutor. 6. The case of the prosecution is that, the accused were found in possession of various implements, aluminum vessels, wash and illicit arrack kept in a temporary shed erected in a cardamom plantation possessed by one Kummatt CRA No.136/08 & Co cases. - **4-** Joy in Chinnakkanal village, Anayirankal Dam catchment area. They were also found to have kept iron barrels of 200 litre capacity filled with wash buried underneath the soil in the nearby cardamom plantation in the possession of one Pachammal. According to the prosecution, the contraband article and the accused persons were taken into custody by the Assistant Sub Inspector of Police and party on 16.7.2002 at 8.30 a.m and thus according to the prosecution, the accused have committed the offences punishable under sections 8(1) and 55(g) of the Abkari Act. With the above allegation, crime No.227/2002 was registered in the Santhampara police station for the said offence and on completing the investigation, report was filed in the Judicial First Class Magistrate court, Nedumkandam wherein C.P.No.36/2006 was instituted and the learned Magistrate, by order dated 30.6.2006 in the above committal proceedings committed the case to the Sessions Court wherein, S.C.No.377/2006 was instituted, which was subsequently made over to the court of Assistant Sessions Court, Kattappana and thereafter to the present trial court for disposal. On appearance of the accused, a formal charge was CRA No.136/08 & Co cases. - **5-** framed against them under section 8(1) and (2) and 55(g) of the Abkari Act which when read over and explained to the accused, they pleaded not guilty and the trial was further proceeded during which Pws 1 to 7 were examined and Exts.P1 to P13 were marked from the side of the prosecution. Besides that, M.Os 1 to 6 were identified and marked as material objects. No evidence, either oral or documentary, produced from the side of the defence. Finally, the learned Sessions Judge has found that the accused are guilty for the charge framed against them and accordingly, they are convicted under section 55(g) and Section 8(1) and (2) of the Abkari Act. On such conviction, both the accused are sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- (Rs.one lakh only). The default sentence is fixed as 6 months simple imprisonment. It is the above finding, conviction and sentence are challenged in this appeal. 7. The learned counsel after reserving his arguments against the merits of the other aspects of the prosecution case, it is submitted that in the present case, the detection of CRA No.136/08 & Co cases. - **6-** the offence and the seizure and arrest of the accused were made by PW3, the Assistant Sub Inspector of police, Santhampara police station who is not an authorized and competent officer. Therefore, according to the learned counsel, in the light of the decisions of this court in, **Sabu v. State of Kerala** (2007(3) ILR Kerala series 763) **, Subramanyam v. State of Kerala** (2010(2) KLT 470); **Saji @ Kochumon v. State of Kerala** (2010(3) KHC 259) **; Baiju v. State of Kerala,** (2011 (1) KHC 518), the conviction and sentence imposed against the appellants are liable to be set aside and the appellants/accused are entitled to get acquittal. 8. The learned Public Prosecutor has no contra contention against the above proposition in the light of the settled position of law. 9. In the light of the pleadings advanced by the learned counsel for the appellants and in the light of the evidence and materials on record, the question to be considered is whether the findings of the court below and the conviction and sentence imposed against the appellants are correct and justified. CRA No.136/08 & Co cases. - **7-** 10. In the light of the above decisions, relied on by the counsel for the appellants and in the light of the facts and circumstances involved in the case, I am of the view that this Court need not go into the merits of the other aspects of the prosecution case. The evidence and materials on record, particularly with respect to the powers of PW3, the same is reflected in paragraph 12 of the trial court judgment. In paragraph 12 of the judgment, though the trial court has observed and found that PW3 is not an authorized officer, no prejudice was caused to the accused by the detection of the offence by PW3 since the offence was detected as per the specific instruction of PW6. According to the learned Judge, there is no impropriety in the procedure done by PW6 by deputing PW3 to the spot of incident to take the accused and contraband articles into custody and bring to the police station. 11. I am unable to endorse the above finding and the reasoning assigned by the learned Sessions Judge to convict the appellants on the basis of the charge levelled against them. In the present case, it is pertinent to note that the CRA No.136/08 & Co cases. - **8-** detection was not effected by PW3 was not when he was on petrol duty or he came across when the offence committed by the accused. As per the evidence of PWs 3 and 6, the information was received by PW6, who is a competent officer. But instead of himself going to the place of occurrence and effect the seizure and arrest of the accused, he authorized PW3 for the same, whereas in the Abkari Act, no such powers are vested upon PW6, who is a competent and empowered officer, to authorise his subordinate official or delegate his powers connected with the search, seizure and arrest. It is now well settled that only the authorized Abkari Officer can effect the seizure and arrest of the accused. **Sabu v. State of Kerala** (2007(3) ILR Kerala series 763), **Subramanyam v. State of Kerala** (2010(2) KLT 470); **Saji @ Kochumon v. State of Kerala** (2010(3) KHC 259); **Baiju v. State of Kerala,** (2011 (1) KHC 518) are the authorities which govern the field. In the light of the facts and circumstances involved in the case, the above decisions are squarely applicable in the present case. Consequently, the evidence with respect to the seizure and arrest done by PW3 CRA No.136/08 & Co cases. - **9-** and the other evidence in support of the evidence of PW3 are liable to be rejected . Thus it can be seen that absolutely there is no legal evidence to convict the appellants for the offence charged against them. Therefore, the conviction recorded by the trial court against the appellants are liable to be set aside and I do so. 12. In the result, the above appeals are allowed setting aside the judgment dated 30.11.2007 in S.C.No.377/2006 of the court of Additional Sessions Judge (Special Judge for NDPS Act Cases), Thpodupuzha and accordingly, the appellants/accused are acquitted of all the charges levelled against them. Accordingly, Crl.A No.136/2008 is allowed and the conviction and sentence imposed against the appellants are set aside and the bail bond if any executed by them are cancelled and they are set at liberty. 13. In the light of the above finding and as Crl.A.136/2008 is allowed, no separate finding and order is necessary in Crl.A.No.2932/2008 and accordingly, the same is closed. CRA No.136/08 & Co cases. - **10-** In the light of the findings in Crl.A.No.136/2008 and as the appellants accused are acquitted, Crl.A.No.2969 of 2008 is allowed setting aside the order dated 20.2.2008 in M.C.No.4/2008 in S.C.No.377/2006 to the extent it is against the appellant herein who alone challenged the order, and coercive step if any taken against him will stand cancelled. V.K.MOHANAN, JUDGE **kvm/-** CRA No.136/08 & Co cases. - **11-**