PadmaraJan, S/O Madhavan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 5TH DAY OF NOVEMBER 2012/14TH KARTHIKA 1934 CRL.A.No. 1182 of 2007 ----------------------[JUDGMENT DTD.6.6.2007 IN SC.340/2005 of ADDL.SESSIONS COURT, FAST TRACK COURT-II, ALAPPUZHA] APPELLANT(S)/ACCUSED: -------------------- PADMARAJAN, S/O.MADHAVAN,PADMAVILASOM, KOYPPALLI KARAZHMA MURI, PERINGALA VILLAGE, MAVELIKKARA TALUK. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) RESPONDENTS(S)/STATE AND COMPLAINANT: ------------------------------------ 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA. 2. THE EXCISE INSPECTOR, EXCISE RANGE,MAVELIKKARA. BY PUBLIC PROSECUTOR SMT.S.HYMA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.A.No. 1182 of 2007** **----------------------------------------** Dated this the 5[th] day of November, 2012 ## **J U D G M E N T** Challenging the judgment dated 6.6.2007 in S.C.No.340 of 2005, the court of Additional Sessions Judge, Fast Track Court-II, Alappuzha, the appellant/accused therein preferred the above appeal challenging his conviction and sentence under Sections 8(1) and (2) of the Kerala Abkari Act. 2. The prosecution case against the accused is that on 15.7.2002 at 12.15 p.m., the accused was found possessing about 10 litres of arrack in MO1 kannas at the place of occurrence in the road in front of the petty shop of Bargavan of Anil Bhavanam in Koippally Karazhma Muri in Peringala Village in Mavelikkara Taluk, thus the accused has committed the offences punishable under Sections 8(1) and (2) and 55(a) of the Kerala Abkari Act. On the basis of the above allegation, crime No.109 of 2002 was registered in the Mavelikkara Excise Range and on completing the investigation, a report was filed. Crl.A.No.1182 of 2007 :-2-: On the basis of the above allegation and the report, S.C.No.340 of 2005 was instituted and during the trial of the same in the trial court, the prosecution, in order to establish its case, adduced its evidence consisting the testimony of Pws.1 to 5 and the documents Exts.P1 to P8. MO1 cannas is also identified and marked as material object. From the side of the defence, Dws 1 and 2 were examined and Exts.D1 and D2 were marked. Towards the conclusion of the trial, the trial court has found that the prosecution has succeeded in proving beyond reasonable doubt that the accused has committed the offence as alleged against him under Sections 8(1) and (2) and 55(a) of the Kerala Abkari Act. On such finding, the accused is found guilty and convicted thereunder. On such conviction, the accused is sentenced to undergo simple imprisonment for two years and to pay fine of Rs.1 lakh and in default of payment of fine, he is sentenced to undergo simple imprisonment for two months for the offence under Sections 8 (1) and (2) of the Kerala Abkari Act and no separate sentence is Crl.A.No.1182 of 2007 :-3-: awarded for the offence under Section 55(a) of the Kerala Abkari Act. It is the above finding, order of conviction and sentence are challenged in this appeal. 3. I have heard Sri.George Varghese Perumpallikuttiyil, learned counsel for the appellant and Smt.S.Hyma, learned Public Prosecutor for the State. 4. Learned counsel for the appellant has strenuously submitted that in the light of the facts and circumstances involved in the case, the conviction recorded by the trial court against the appellant is not legally and factually sustainable, especially in the v. light of the decisions of this Court reported in **Subrahmaniyan State of Kerala** [2010(2) KLT 470] as well as **Parathi Sasidharan** v. **State of Kerala** [ILR 2012 (2) Kerala 480]. 5. It is beyond dispute that the alleged crime was detected and the accused was arrested and the contraband articles were recovered by PW1, who was then working as Assistant Excise Crl.A.No.1182 of 2007 :-4-: Inspector of Excise Range, Mavelikkara on 15.7.2002. The learned Public Prosecutor fairly conceded that in view of the notification SRO No.234/1967 and 361 of 2009 till 8.5.2009, the date on which the notification came into effect, the Assistant Excise Inspector was not empowered to perform the duties mentioned in Sections 40 to 53 of the Abkari Act and in the decision cited supra, on the above ground, the appellants therein were acquitted. 6. In the present case also, the date of occurrence was on 15.7.2002 and on that date, PW1, who was working then as Assistant Excise Inspector attached to the Mavelikkara Excise Range was not authroised and empowered to exercise the powers mentioned in Sections 40 to 53 of the Abkari Act. If that be so, the appellant herein is also entitled to get the benefit of the decisions cited supra. Accordingly, the conviction recorded against the appellant by the impugned judgment is set aside. Crl.A.No.1182 of 2007 :-5-: In the result, this appeal is allowed setting aside the judgment dated 6.6.2007 in SC No.340 of 2005 of the Additional Sessions Judge, Fast Track Court-II, Alappuzha and he is acquitted of all the charges levelled against him. Accordingly, the bail bond executed by the appellant shall stand cancelled and he is set at liberty. **V.K.MOHANAN, Judge** MBS/ Crl.A.No.1182 of 2007 :-6-: **V.K.MOHANAN, J** . CRL.A.No. 434 OF 2003 **JUDGMENT** Crl.A.No.1182 of 2007 :-7-: Dated:11.11.2011