## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH**
**THURSDAY, THE 25TH DAY OF MAY 2017/4TH JYAISHTA, 1939**
## **CRL.A.No. 506 of 2007 ( )**
**--------------------------**
**AGAINST THE ORDER/JUDGMENT IN SC 743/2001 of ADDITIONAL SESSIONS COURT (ABKARI CASES) KOTTARAKKARA DATED 15.3.2007**
**APPELLANT(S)/ACCUSED NO.1:**
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**RAVEENDRAN, S/O BALAKRISHNAN,**
**RENJITH BHAVAN, POOVATTOOR,, PADINJAREMURI, KULAKKADA VILLAGE,, KOTTARAKKARA.**
**BY ADV.**
## **SRI.M.T.SURESHKUMAR**
**RESPONDENT(S)/COMPLAINANT:**
**--------------------------**
**STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.**
**BY PUBLIC PROSECUTOR SMT. K.K. SHEEBA**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **SHG/**
## **K.P. JYOTHINDRANATH, J.**
**- - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.506 of 2007**
**- - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of May, 2017**
## **J U D G M E N T**
This appeal is preferred against the judgment of conviction and sentence dated 15.3.2007 made in SC 743/2001 on the file of the Additional Sessions Judge (Abkari cases) Kottarakkara. The conviction is under Section 55 (a) and (i) of the Abkari Act and sentenced to undergo rigorous imprisonment for four years under each head and to pay a fine of Rs.1 lakh each with a default sentence of rigorous imprisonment for three more months on each count. Originally there were two accused. The second accused was acquitted by the trial court. The first accused is the appellant herein.
2. The facts necessary for consideration of this appeal is as follows:
On 6.8.1998 at about 6 pm. the Sub Inspector of Police and his party entered into the premises of toddy shop No.19 of Kalayapuram and found two jerry cans each containing 10 ltrs. capacity which was kept beneath the
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counter. The above said contraband was seized, sample was collected from both the jerry cans. The appellant herein was arrested from the spot and the licensee was arrayed as second accused and a crime was registered thereon. After investigation a final report was filed and the court examined PWs 1 to 4 and Exts. P1 to P6 were marked. MOs 1 to 5 were also marked. After appreciating the evidence, the court below convicted the first accused and acquitted the second accused and sentenced as stated above. Aggrieved by the said conviction and sentence, this appeal preferred.
3. When the appeal came up for hearing, the learned counsel appearing for the appellant submitted before me that, in this case, admittedly the prosecution case is that the seizure was from a licensed premise for vending toddy. Prosecution got no case that any search warrant was obtained from a court of law. It got no case that any search memorandum also preferred as required under Section 165 of the Criminal Procedure Code. Thus, the only inference
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that can be drawn is that if the seizure was as per Section 31 of the Abkari Act, then the entry is illegal without obtaining a warrant/preparation of search memorandum. Then the next aspect is that if the entry is usurping the power vested upon the Sub Inspector/Abkari officer under Section 32 of the Abkari Act, then it can be seen that he got no power to arrest any person from therein. It is evident and apparent that Section 40 will not be applicable as the said Section only deals with Sections 31, 34 and 35 of the Abkari Act. It can be also seen that in this case there is nothing to show that the abkari officer gave immediate information to his immediate official superior or to an Abkari Inspector. The gist of the argument is that, this being a special statute, an officer acting under the provisions of the same is bound strictly to go by the Sections/provisions of the Act. The second argument advanced by the learned counsel is that it is true that the appellant was arrested from the shop. The principal who is liable for any violation of law and rules from a licensed
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premises will be the licensee. Prosecution got no case that the appellant herein was a licensee. Prosecution case is that liquor was found under the counter of the shop. It is the submission that if he was considered as an individual who possessed the contraband on his individual capacity then violation of the provisions under Section 31 of the Act will entitle him for benefit of doubt. As non- obtaining of the search warrant/preparation of search memo will got to the root of the case.
4. I have heard the learned Public Prosecutor who submitted before me that the initial entry to the premises is by virtue of Section 32 of the Abkari Act. But the moment he entered and found that offence is committed in his presence i.e an offence under Section 55 (a) (i) of the Abkari Act then he need not hesitate to arrest that person. When arrest and seizure is done he has to act in accordance with the provisions of the Cr.P.C. Under such circumstances, there is nothing to interfere with the conviction entered into by the court below.
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5. After hearing the learned counsel and the Public Prosecutor, I very carefully examined the evidence in this matter. As per the evidence of PW3 on 6.8.1998 he was the S.I. Kottarakkara and while he was conducting patrolling duty he got an information that arrack sale is going on in toddy shop No.TS 19 at Kalayapuram and he reached at the spot at 6 p.m. He had seen the shop functioning therein and his further evidence is that a person was seen transferring liquid from a white can and it is further deposed that can was seen under the counter and he smelled the liquid and found that it is arrack and he questioned that person. He told him that he is the salesman and he was arrested and the can was taken. According to him, A2 was also made as an accused as the licensee and the article was forwarded to the court in 151 A form. According to him, Ext.P1 was produced on 7.8.1998 and was received only on 14.8.1998. In this case the article as well as the sample reached before the court only on 14.8.1998 even though the lifting of the sample was on 6.8.1998. PW3 got a case that it was
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produced before the court on 07.8.1998. But it was received by the court only on 14.8.1998. Thus it can be only construed as the article produced before the court only on 14.8.1998. There is inordinate delay in producing the article. As per the dictum laid down by this court in **Raju v. State of Kerala [2012 KHC 877]** the seizure should be reported to the court forthwith. In this case when the prosecution got a case that he was seen poring the liquid then also the strict adherence to the provisions is highly necessary. In this case even though the quantity involved is 20 ltrs. it can be seen that the relevant provision was not adhered. It is also relevant to note that the specific case of PW3 is that he got information that there is vending of illicit arrack from a toddy shop, then, he should have prepared a memorandum of search before proceeding for the entry to the said shop. If he is usurping the power vested upon him under Section 32 of the Abkari Act, then he may not be getting the power to arrest the person therein but surely only can proceed against the licensee and the
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persons who are responsible for the violation. In this case there is also no prompt forwarding of the contraband to the court. It is to be remembered that the second accused was acquitted by the trial court for non-production of proper licence details against the person who was arrayed as second accused. Thus it can be only said that this is a case where benefit of doubt can be extended to the appellant herein also who was allegedly the salesman at the time of detection of the offence. Hence, the appeal is allowed setting aside the conviction and sentence imposed against the appellant. The bail bond, if any, executed by the appellant is cancelled and he is set at liberty. The amount , if any, deposited by the appellant towards the compliance of the condition imposed by this court at the time of suspending the sentence is directed to be refunded to the appellant/accused forthwith on his proper application.
Sd/- **K.P. JYOTHINDRANATH JUDGE**
//True copy//
P.A. TO JUDGE
shg/
