Santosh Kumar S/o Sadasivan Nair v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 11[TH] DAY OF AUGUST 2022 / 20TH SRAVANA, 1944 CRL.A NO. 2900 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN CC 10/2006 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE, TRIVANDRUM SC 2131/2006 OF ADDITIONAL DISTRICT COURT (ADHOC) III, ``` ## **`TRIVANDRUM`** ## **`APPELLANT/ACCUSED:`** ``` SANTHOSH KUMAR S/O SADASIVAN NAIR IDAVANKUZHY VEEDU, PEYADU DESOM, VILAPPIL VILLAGE,, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV SRI.NIREESH MATHEW ``` ## **`RESPONDENT/COMPLAINANTS`** ``` STATE OF KERALA INSPECTOR, EXCISE RANGE, THIRUVANANTHAPURAM,, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2900 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 24.11.2008, passed by the Additional Sessions Court, (Fast Track - III) Thiruvananthapuram in Sessions Case No.2131 of 2006 the appellant/accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs. 1 Lakh. 2. The prosecution case is that on 03.02.2004 at about 06.00 pm, the accused was found to be transiting 10 litres of arrack at Arayalloor Desom, Thirumala Village in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the ``` CRL.A NO. 2900 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** trial Court. On the appearance of the accused charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs. 1 to 6 and proved Exts. P1 to P9 and MOs 1 to 3. 5. After the closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri. Nireesh Mathew, the learned counsel ``` CRL.A NO. 2900 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the following grounds:- - (i) The prosecution failed to establish that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. - (ii) The Officer who detected the offence is incompetent to effect seizure and arrest. 8. The alleged seizure and arrest were effected on 03.02.2004 by the Circle Inspector, Excise Enforcement and Narcotic Special Squad, Thiruvananthapuram (PW1). PW1 had collected the sample from the contraband substance allegedly seized from the place of occurrence. The sample reached the Court on 04.02.2004. The sample was forwarded to the laboratory on 17.03.2004. ``` CRL.A NO. 2900 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** Ext.P6 is the forwarding note/requisition for sending sample to the laboratory. Ext.P6 shows that the specimen of the seal stated to have been affixed on the bottle containing the sample was not forwarded to the laboratory to ascertain the genuineness of the sample produced for analysis. There is nothing on record to show that the specimen of the seal was produced before the Court. 9. In **Rajamma v. State of Kerala** [2014 (1) KLT 506], this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the Court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the Chemical Analysis Report. 10. Therefore, the prosecution failed to establish that the sample drawn at the place of occurrence eventually reached the Chemical Examiner’s Laboratory. ``` CRL.A NO. 2900 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** Therefore, Ext.P7, Certificate of Chemical Analysis, has no evidentiary value. 11. Learned counsel for the accused further contended that the detection was made by an incompetent officer which would result in the collapse of the entire prosecution case. The learned counsel for the appellant relied on SRO.No.234/1967, a Government Notification issued under Section 4 of the Abkari Act, conferring powers to various officers under the Abkari Act. In the present case the offence was detected by PW1, a Circle Inspector of Excise Enforcement and Narcotic Special Squad, Thiruvananthapuram. The detection was made on 03.02.2004. The Government notification issued as SRO.No.234/1967 had authorised various categories of Excise Officials to discharge the various functions under the Kerala Abkari Act as Abkari Officers. By the said notification only Abkari Officials attached to Excise Range Offices or Circles, or such officers in charge of distilleries, warehouses, wineries etc., were given powers as Abkari ``` CRL.A NO. 2900 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** Officers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Excise Officials of special wings or squads like Excise Enforcement and Anti Narcotic Special Squad, or the Excise Intelligence Squad were not given such powers under the 1967 Government Notification. In 2009, the Government of Kerala issued another notification, SRO.No.361/2009 dated 08.05.2009, in supersession of the 1967 notification by which special categories like Excise Officials of the Excise Enforcement and Anti Narcotic Special Squad and Excise Intelligence Squad were given powers of Abkari Officers under the Abkari Act. The resultant conclusion is that as on the date of detection in the present case, the detecting officer who was a Circle Inspector, Excise Enforcement and Anti Narcotic Special Squad had no such powers. 12. The learned counsel for the accused submitted that since the detecting officer was an incompetent officer, all further proceedings in this case must collapse. ``` CRL.A NO. 2900 OF 2008 ``` ..8.. 13. The learned counsel for the accused relied on **Suresh v. State of Kerala** [2017 (2) KHC 891] to substantiate his contentions. While dealing with a similar fact situation this Court in Suresh's case (supra) held that a case built on the detection made by an incompetent officer will have to collapse necessarily. On this ground also, the prosecution must fail. 14. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore found not guilty of the offence punishable under Section 8(2) of the Abkari Act. In the result, (i) The Appeal is allowed ; (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the offence alleged ; (iv) He is set at liberty ; - (v) Any amount deposited by the accused as per the ``` CRL.A NO. 2900 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** interim orders of this Court shall be disbursed to him as per law. **Sd/K. BABU, JUDGE** kkj