Sebastian s/o Jose v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943** ## **CRL.A.No.783 OF 2006** ## **SC 48/2005 OF ADDITIONAL SESSIONS COURT (ADHOC-1), THODUPUZHA** **CP 25/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, DEVIKULAM** ## **APPELLANT/S:** **SEBASTIAN S/O.JOSE, VEVUKATTIL HOUSE, TEA COMPANY KARA, BYSON VALLEY VILLAGE, IDUKKI.** **BY ADV. SRI.SOORAJ ELANJICKAL** **RESPONDENT/S:** **STATE OF KERALA THROUGH EXCISE INSPECTOR DEVIKULAM, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **OTHER PRESENT:** **SMT. M. K. PUSHPALATHA, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Case No. Crl. 783/2006** -2- ## **JUDGMENT** The appellant was convicted and sentenced by the court below under Sections 55(a) and 8(2) of the Abkari Act. 2. The prosecution allegation is that on 17.12.1999 at about 5.45 pm, the appellant was found in possession of 15 litres of illicit arrack, in contravention of the provisions of the Abkari Act. ## 3. Heard. 4. The learned counsel for the appellant has argued that since there is no evidence to prove the drawing of the sample and sending the same to the laboratory in a tamper – proof condition, the appellant is entitled to be acquitted. It has been further argued by the learned counsel for the appellant that since **Case No. Crl. 783/2006** the detection of the offence, seizure of the contraband and the arrest of the appellant were made by PW1, who was only an Assistant Excise Inspector, the appellant is entitled to be acquitted on that ground as well. 5. PW1 was the Officer, who seized the contraband. The evidence of PW1 would show that the contraband as such was seized and sealed at the spot. Ext.P5 is the property list which would show that a can having a capacity of 20 litres, containing 15 litres of contraband had been produced before the court. Ext.P1 Mahazar would also show that the contraband as such was seized and sealed at the spot. Ext.P7 is the Certificate of Chemical Analysis, which would show that 250 ml of the sample was produced before the laboratory in a 375 ml bottle. This would show **Case No. Crl. 783/2006** that the sample was produced from the contraband after its production before the court. However, the Thondy Clerk, who had drawn the sample from the contraband, was not examined before the court to prove the drawing of the sample from the contraband. 6. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus: “Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.” 7. In Ravi v. State of Kerala [2011 (3) KLT 353], the **Case No. Crl. 783/2006** -5- Division Bench of this Court held that the prosecution in a case under the Abkari Act could succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the chemical examiner by change of hands in a tamper proof condition. 8. Since the Thondy Clerk concerned was not examined, the prosecution could not establish the drawing of the sample from the contraband and sending the same to the laboratory in a tamper – proof condition. Consequently, 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 **Case No. Crl. 783/2006** evidence to connect the appellant with the sample analysed in the laboratory. Consequently, the appellant is entitled to be acquitted. 9. The seizure in this case was effected by PW1 who was only an Assistant Excise Inspector. He also arrested the appellant. As per S.R.O. No.234/1967, the Assistant Excise Inspector was not an Abkari Officer under the Abkari Act during the relevant period. 10. The court in Subrahmaniyan v. State of Kerala [2010 (2) KHC 552] held that the Assistant Excise Inspector was not a competent and authorised Officer under the Abkari Act, especially under Sections 4(d) and 70 of the Abkari Act as per S.R.O. No.234/1967 and hence, the seizure and arrest made by the Assistant Excise Inspector **Case No. Crl. 783/2006** -7- were without authorisation and jurisdiction. 11. The court in Sasidharan v. State of Kerala [2012 (2) KLT 392] followed the decision in Subrahmaniyan (supra) and held that the Assistant Excise Inspectors were not empowered under the Abkari Act prior to 8.5.2009 to perform the duties under Sections 31, 32, 34, 35 and 38 to 53 of the Abkari Act. 12. Since PW1 was only an Assistant Excise Inspector, he was not competent to perform the duties of an Abkari Officer during the relevant period. Therefore, PW1 had no authority to effect the seizure of the contraband and arrest of the appellant. In the said circumstances, the seizure of the contraband and the arrest of the appellant, by PW1 were without authorisation and jurisdiction. Consequently, the conviction and sentence **Case No. Crl. 783/2006** -8- passed by the court below relying on the said seizure of the contraband and the arrest of the appellant cannot be sustained. For the said reason also, the appellant is entitled to be acquitted. In the result, this Criminal Appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged. ## **sd** ## **B. SUDHEENDRA KUMAR, JUDGE** . dl/