Santosh @ Unnikrishnan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 31[ST] DAY OF MAY 2022 / 10TH JYAISHTA, 1944 CRL.A NO. 2183 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 651/2006 OF ADDITIONAL DISTRICT COURT(ADHOC II), THRISSUR ``` ``` CP 82/2005 OF JUDICIAL MAGISTRATE OF FIRST ``` ## **`CLASS ,VADAKKANCHERRY`** ## **`APPELLANT/ACCUSED:`** ``` SANTHOSH @ UNNIKRISHNAN S/O VELLACHI,THEKKINKADU COLONY, KONDAZHI DESOM,, VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. ``` ``` BY ADV SHOBY K.FRANCIS ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA/EXCISE INSPECTOR PAZHAYANNUR RANGE, THRISSUR DISTRICT,, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2183 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 20.08.2008 passed by the Additional Sessions Court (Fast Track No.IIAdhoc), Thrissur in Sessions Case No.651/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 26.02.2004 at about 5.30 p.m., the appellant/accused was found in possession of 1000ml of illicit liqour on the PazhayannurKondazhi road in front of Devaki Shopping Complex in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari ``` CRL.A NO. 2183 OF 2008 ``` ..3.. Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charges were framed against him for the offences punishable under Sections 55(a), 55(i) and 58 of the Abkari Act. The accused pleaded not guilty to the charges and therefore, he came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 6 and proved Exts. P1 to P13 and MOs 1 and 2. 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 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 ``` CRL.A NO. 2183 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** Section 55(a) of the Abkari Act and convicted him thereunder. 6. Heard Sri. Shoby K. Francis, the learned counsel 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 challenged the impugned judgment on the following grounds:- - (i) The prosecution has not succeeded in establishing the tamper-proof despatch of the sample from the Court to the Laboratory. - (ii) The excise officer who detected the offence was not competent to effect arrest and seizure. 8. The arrest and seizure were effected by the Preventive Officer of Excise Enforcement and AntiNarcotic Special Squad (PW2). The excise team led by PW2 seized 3 litres of IMFL from the possession of the ``` CRL.A NO. 2183 OF 2008 ``` ..5.. accused on 26.02.2004. The bottles containing the sample were produced before the Court on 27.02.2004. The prosecution has not adduced any evidence as to the date on which the samples were forwarded to the Chemical Examiner’s Laboratory. Ext.P12 Certificate of Chemical Analysis shows that as per letter dated 18.03.2004, one sealed packet having three sealed bottles reached the Chemical Examiner’s Laboratory on 19.03.2004. In the absence of any contra evidence, the necessary inference is that the samples were handed over to the Excise Guard Shri. K.N. Suresh, from the Court on 18.03.2004. He produced the samples in the laboratory, only on 19.03.2004. The bottles containing the sample remained in the custody of the Property Clerk of the Court. These officials were not examined by the prosecution to establish the tamper-proof despatch of the samples to the laboratory. In **State of Rajasthan v. Daulat Ram** [AIR 1980 SC 1314], the Apex Court held that non- examination of the officials who handled the ``` CRL.A NO. 2183 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** sample during the period of its transit from the Court to the laboratory is fatal to the prosecution. 9. The resultant conclusion is that the prosecution failed to rule out the possibility of the samples being changed or tampered with. 10. The learned counsel for the appellant/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 PW2, a Preventive Officer of Excise Enforcement and Anti-Narcotic Special Squad, Thrissur. The detection was made on 26.02.2004. The Government notification issued as SRO.No.234/1967 had authorised various categories of Excise Officials to discharge the various functions under the Abkari Act as Abkari Officers. By the said notification ``` CRL.A NO. 2183 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** 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 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 Preventive Officer, Excise Enforcement and AntiNarcotic Special Squad had no such powers. ``` CRL.A NO. 2183 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 11. The learned counsel for the appellant/accused submitted that since the detecting officer was an incompetent officer, all further proceedings in this case are vitiated. 12. The learned counsel for the appellant/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. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. 13. 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 55(a) of the Abkari Act. ``` CRL.A NO. 2183 OF 2008 ``` ..9.. 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 interim orders of this Court shall be disbursed to him as per law. **Sd/K. BABU, JUDGE** kkj