P. Vasumathi v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` TUESDAY, THE 26[TH] DAY OF JULY 2022 / 4TH SRAVANA, 1944 ``` ``` CRL.A NO. 349 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT IN CP 24/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,HOSDRUG ``` ``` SC 1022/2012 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, KASARAGOD / III ADDITIONAL MACT, KASARAGODE ``` ## **`APPELLANT/ACCUSED:`** ``` P.VASUMATHI AGED 63 YEARS W/O. P.N. PRABHAKARAN, THERANKALLU, THAYANNUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADVS. SRI.T.K.VIPINDAS SRI.K.M.HASHIR SRI.K.M.MUHAMMED HUSSAIN SRI.K.V.SREE VINAYAKAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTED BY EXCISE INSPECTOR, HOSDURG EXCISE RANGE. ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 26.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 349 OF 2014 ``` ``` 2 ``` ## **JUDGMENT** This appeal arises out of conviction and sentence imposed by the Additional District and Sessions Court-III, Kasargod dated 10.03.2014 in S.C.No.1022/2012 against the appellant under Section 8(1) r/w 8(2) of the Kerala Abkari Act. The appellant is the accused before the trial court. 2. Heard the learned counsel for the appellant as well as the learned Public Prosecutor. 3. The prosecution case is as follows: It is alleged by the prosecution that on 02.08.2011 at about 1.00 pm, the appellant was found transiting 4 litres of ID arrack in a white plastic can, having capacity of 5 litres, inscribed ‘Durucon VP5’ at its beneath through the eastern side of Perla – Thayannur Road Junction on Sarkari – Attakkandam Road in Theramkally Desam in Thayyannur Village, Hosdurge Taluk, against the prohibitions contained in the Kerala Abkari Act and thereby the appellant ``` CRL.A NO. 349 OF 2014 ``` ``` 3 ``` committed offence under Section 8(1) r/w 8(2) of the Kerala Abkari Act. 4. The court below tried the matter after following the pre-trial formalities. PW1 to PW5 examined and Exts.P1 to P10 marked on the part of the prosecution. 5. No defence evidence adduced though opportunity was given to the accused to adduce defence evidence, after questioning him under Section 313 of Cr.P.C. 6. After appraising the evidence, the trial court convicted and sentenced the accused under Section 8(1) r/w 8(2) of the Kerala Abkari Act and she was sentenced to undergo simple imprisonment for one year and pay a fine of Rs.1,00,000/-. In default, simple imprisonment for a further period of three months also was imposed. Set off also was allowed. 7. While assailing the judgment of the trial court, the learned counsel for the appellant argued that in this ``` CRL.A NO. 349 OF 2014 ``` ``` 4 ``` matter, the inventory marked as Ext.P7 was prepared by PW5, the Assistant Excise Inspector himself in violation of the mandate of Section 67B of the Kerala Abkari Act. According to the learned counsel for the appellant, as per Section 67B of the Kerala Abkari Act, the authorised officer must be an officer authorised by the Government by notification in the Gazette and the said officer is an officer not below the rank of an Assistant Excise Commissioner. In support of this argument, decision of this Court reported in **Chandran v. State (2016 (4) KLT 727)** is placed by the learned counsel for the appellant. 8. The learned Public Prosecutor also not disputed the legal position and he also submitted that the legal position as argued by the learned counsel for the appellant is not changed so far. 9. Going by the decision highlighted by the learned counsel for the appellant, subsequently followed in the decision reported in **Balakrishna Rai v. State of Kerala** ``` CRL.A NO. 349 OF 2014 ``` ``` 5 ``` **(2020(3) KLT 727)** , the legal position is emphatically clear that Section 53A(2) of the Kerala Abkari Act mandates that the inventory shall be prepared by the authorised officer. Section 67B provides that the authorised officer must be an officer authorised by the Government by notification in the Gazette and the said officer is an officer not below the rank of Assistant Excise Commissioner. 10. SRO 671/75 provides that Assistant Commissioners in-charge of Excise Divisions are authorised officers under sub-section (1) of Section 67B of Abkari Act for the purpose of Section 67B within their respective jurisdiction. 11. Here, the Sessions Court relied upon the evidence of PW1 to PW4 to convict the accused. Admittedly and evidently, PW5, who prepared Ext.P7 inventory is none other than the Assistant Excise Inspector and is not an authorised officer as provided under Section ``` CRL.A NO. 349 OF 2014 ``` ``` 6 ``` 67B of the Abkari Act. Therefore, the inventory prepared in this case is vitiated. 12. In **Chandran's** case (Supra), and in a subsequent decision reported in **Abhilash v. State of Kerala (2021 KHC 2446)** this Court held that when inventory was prepared in violation of the statutory mandate, accused is entitled to acquittal. In this case, PW3 and PW4, are independent witnesses cited by the prosecution to prove preparation of Ext.P2 mahasar pertaining the recovery turned hostile to the prosecution and nothing extracted from her even during her examination after declaring her hostile, to support the prosecution. 13. That apart, it is relevant to note that the accused was not arrested during recovery of the contraband or during the period of investigation. If so, the conscious possession of the contraband by the accused itself is not fully established and the same also shadows ``` CRL.A NO. 349 OF 2014 ``` ``` 7 ``` doubt in the prosecution case and the same by itself is a ground for acquittal of the accused. 14. The trial court relied on the evidence of official witnesses to record conviction. It is a settled law that conviction can be recorded relying on the evidence of official witnesses also, when the evidence wholly reliable. 15. Two independent witnesses, viz., PW3 and PW4, turned hostile to the prosecution stating that they never seen the detention of the contraband from the accused. They even denied their signatures in Ext.P2 seizure mahazar. 16. Since there is noncompliance of the mandatory provision under Section 67B of the Kerala Abkari Act, the prosecution case is vitiated. Further, the conscious possession of the contraband by the accused also not established by the prosecution in a convincing manner. Therefore, the appellant herein is entitled to get acquittal. ``` CRL.A NO. 349 OF 2014 ``` ``` 8 ``` In the result, this appeal stands allowed and the conviction and sentence imposed by the trial court against the appellant stand set aside and the bail bond of the appellant stands cancelled. The appellant is set at liberty forthwith. It is ordered that fine, if any, deposited by the appellant in obedience to the order of this Court shall be refunded to the appellant, as per law. **Sd/-** **A. BADHARUDEEN** **JUDGE** nkr