# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
```
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
```
```
WEDNESDAY, THE 1[ST] DAY OF NOVEMBER 2023 / 10TH KARTHIKA, 1945
CRL.REV.PET NO. 2875 OF 2007
```
```
AGAINST THE ORDER/JUDGMENT IN CRA 367/2003 OF II ADDITIONAL
```
```
SESSIONS COURT, KOLLAM
```
```
AGAINST THE ORDER/JUDGMENT IN SC 21/2000 OF PRINCIPAL ASSISTANT
SESSIONS COURT, KOLLAM
```
## **`REVISION PETITIONER/APPELLANT/1ST ACCUSED:`**
```
RADHAKRISHNAN
VARUVILAPUTHEN VEEDU, MYLAPOORU CHERRY,, THAZHUTHALA
VILLAGE, KOLLAM.
```
```
BY ADV SRI.C.RAJENDRAN
```
## **`RESPONDENT/RESPONDENT/COMPLAINANT:`**
```
STATE OF KERALA
```
```
SUB INSPECTOR OF POLICE,
KOTTIYAM POLICE STATION,
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
```
```
BY ADV PUBLIC PROSECUTOR
```
```
SRI. M. C. ASHI - PP
```
```
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 01.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
```
```
CRL.REV.PET NO. 2875 OF 2007
```
```
2
```
## **ORDER**
This revision petition is at the instance of the 1[st] accused in S.C. No.21 of 2000 on the file of Principal Assistant Sessions Judge, Kollam, assailing the judgment in Crl.Appeal No.367 of 2003 on the file of II[nd] Additional Sessions Judge, Kollam which upheld his conviction and sentence under Section 55(a) and (i) of the Abkari Act.
2. The prosecution case is that, on 10.01.1999 at 7.40 p.m., PW6-Assistant Sub Inspector of Police and party while on patrol duty, got reliable information that the revision petitioner was keeping spirit in his house for the purpose of manufacture and sale of illicit arrack, and after sending search memo to the court, PW6 and police party proceeded to the house of the revision petitioner. On conducting search in his house, they seized 11 cans, each containing 50 liters of spirit. Search list was prepared at the scene of occurrence, and the cans along with its contents were seized. Samples were taken from all the cans in 375 ml bottles, and the revision petitioner was arrested. He was produced before the police station along with the records
```
CRL.REV.PET NO. 2875 OF 2007
```
```
3
```
and the articles seized, and a case was registered as Crime No. 16 of 1999 of Kottiyam Police Station under Section 55 (a) and (i) of the Abkari Act, against the revision petitioner and two others as they were also found involved in that crime. PW7 Sub Inspector of Police, Kottiyam investigated the case and laid charge sheet against the revision petitioner, and two others.
3. The trial court examined PWs.1 to 7 and marked Exts.P1 to P12 and identified MO1 series.
4. On appreciating the facts and evidence, the trial court found the revision petitioner (A1) guilty under Section 55(a) and (i) of the Abkari Act and he was sentenced to undergo rigorous imprisonment for four years and fine of Rs.1,00,000/- for each offence, and in default he was sentenced to undergo simple imprisonment for six months each. The other accused persons (A2 & A3) were acquitted.
5. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl. Appeal No.367 of 2003. The appellate court on reappraisal of the facts and evidence, found that, there is no reason to interfere with the conviction and sentence imposed by the trial court and so,
```
CRL.REV.PET NO. 2875 OF 2007
```
```
4
```
his appeal was dismissed, against which he has preferred this revision petition.
6. Now this Court is called upon to verify the legality, propriety and correctness of the judgment rendered by the courts below.
7. Heard learned Counsel for the revision petitioner and learned Public Prosecutor.
8. The main ground, on which the revision petitioner is assailing the judgments, is with respect to the incompetency of PW6 for conducting search and seizure. According to the revision petitioner, as per SRO No. 321/96, all Police Officers, of and above the rank of Sub Inspector of Police in charge of law and order, and working in the General Executive Branch of the Police Department were empowered to exercise all the powers and to perform all the duties of Abkari Officers.
9. SRO No. 321/96 reads thus;
“ **SRO No. 321/96 :** In exercise of the powers conferred
by Section 4 of the Abkari Act. 1 of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and
```
CRL.REV.PET NO. 2875 OF 2007
```
```
5
```
Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective Jurisdiction for the purposes of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the sections aforesaid. This notification shall come into force with immediate effect. **(GOP No. 69/96/TD dt. 29-3-1996** ”
10. When PW6, the detecting officer, was examined before court, he was asked about his competency, and he answered that on the date of detection, he was in charge of the Sub Inspector of Police and so he was competent. But no records were produced to substantiate that contention. Admittedly, he was the Assistant Sub Inspector of Police, Kottiyam police station, and going by SRO No.321/96, he was not an empowered officer to exercise the powers and to perform the duty of Abkari Officer as mentioned above. So the contention of the revision petitioner is legally sustainable.
```
CRL.REV.PET NO. 2875 OF 2007
```
```
6
```
11. Another contention put forward by the learned Counsel for the revision petitioner is that, there was no forwarding note produced along with the articles seized, and there is nothing to show that any sample seal was provided in the forwarding note. So, even if, Ext.P10 chemical analysis report says that, the seals on the bottles were intact and found tallied with the sample seal provided, no sanctity could be attached to that statement. Moreover, the occurrence was on 10.01.1999, but the articles seized along with the sample bottles reached the court only on 14.01.1999. PW6 deposed that, till the articles seized were produced before the court, it was kept under his custody. That is not a proper explanation for the delay in sending the sample seized to the court. Since no forwarding note was produced and marked in this case, the prosecution failed to establish that there was tamper-proof despatch of the sample to the laboratory. So, the link evidence is not established satisfactorily.
12. Learned Counsel for the revision petitioner relied on the decision **Ajayakumar v. State of Kerala** (2021 KHC 3872) to say that, since no forwarding note was
```
CRL.REV.PET NO. 2875 OF 2007
```
```
7
```
produced and marked, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory and so, there is no satisfactory link evidence to show that, it was the same sample which was drawn from the contraband seized from the appellant, reached the hands of the chemical examiner, in a tamper-proof condition. Moreover, the Assistant Sub Inspector of Police, who detected the offence, was not an Abkari Officer.
13. Paragraphs 9 and 10 of the decision **Ajayakumar** (2021 KHC 3872) reads thus;
“ 9. Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory Therefore, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper-proof condition. In the said circumstances, there is no link evidence to connect the appellant with Ext. P5 certificate of chemical analysis and consequently, the conviction and sentence passed by the court below cannot be sustained. In the said circumstances
```
CRL.REV.PET NO. 2875 OF 2007
```
```
8
```
also, the appellant is entitled to be acquitted.
10. PW4 was the Assistant Sub-Inspector of Police, who detected the offence. seized the contraband and registered the crime. The sampling was also done by PW4. As per SRO No 321/96, all Police Officers of and above the rank of Sub Inspector of Police in charge of law and order and working in the General Executive Branch of the Police Department were empowered to exercise all powers and perform all duties of Abkari Officers. The Assistant Sub Inspector of Police was not included as an Abakri Officer as per SRO No.321/96. The learned Public Prosecutor has submitted that thereafter also, no notification was issued making the Assistant Sub Inspector of Police as an Abkari Officer under the Act.”
14. In the light of SRO No. 321/96 and also based on the decision **Ajayakumar** (2021 KHC 3872), this Court is of the view that, PW6 the Assistant Sub Inspector of police was not a competent officer to conduct search and seizure of the contraband, exercising the powers of an Abkari Officer. So the conviction and sentence of the revision petitioner under Section 55 (a) and (i) of the Abkari Act are liable to set aside.
```
CRL.REV.PET NO. 2875 OF 2007
```
```
9
```
In the result, the revision petitioner is found not guilty of the offences under Section 55(a) and (i) of the Abkari Act, and he is acquitted under Section 235 (1) of Cr.P.C. His bail bond, is cancelled and he is set at liberty forthwith.
The Criminal Revision Petition stands allowed accordingly.
**Sd/-**
**SOPHY THOMAS JUDGE**
LU
