Shahida d/o Pathumma v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **THURSDAY, THE 15TH DAY OF OCTOBER 2020 / 23RD ASWINA, 1942** **CRL.A.No.478 OF 2008** **SC 126/2002 OF ADDITIONAL SESSIONS COURT, KOTTARAKKARA** ## **APPELLANT/S:** **SHAHIDA D/O PATHUMMA,NISHA MANZIL, HARIJAN COLONY, KURAVANTHERRI, MARAVOORKONAM MURI, ALAYAMON VILLAGE, KOLLAM.** **BY ADVS. SRI.M.V.THAMBAN SRI.K.V.ANIL KUMAR** ## **RESPONDENT/S:** **STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** **SMT. M.K.PUSHPALATHA, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Case No. Crl.A.478/2008** -2- ## **JUDGMENT** The appellant was convicted and sentenced by the court below under Section 55(a) of the Abkari Act. 2.The prosecution allegation is that on 7.9.2000 at about 1 p.m., the appellant was found in possession of four litres of arrack, in contravention of the provisions of the Abkari Act. ## 3. Heard. 4. The learned counsel for the appellant has argued that since the seizure of the contraband and the investigation were done by the Assistant Sub Inspector of Police, who was not an Abkari Officer, the appellant is entitled to be acquitted. It has been further argued by the **Case No. Crl.A.478/2008** -3- learned counsel for the appellant that since there was inordinate delay in producing the contraband and the sample before the court, the appellant is entitled to benefit of doubt on that ground as well. 5. PW4 was the Assistant Sub Inspector of Police during the relevant period. He detected the offence. He had also seized the contraband and drawn the sample from the contraband. Thereafter, he registered the crime and conducted the investigation. 6. As per S.R.O. 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 the Abkari officers. The **Case No. Crl.A.478/2008** -4- Assistant Sub Inspector of Police was not included as an Abkari Officer as per S.R.O. No.321/96. The learned Public Prosecutor has submitted that no notification was issued thereafter making the Assistant Sub Inspector of Police also as an Abkari Officer under the Act. In a similar situation, 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 were without authorisation and jurisdiction. 7. The court in Sasidharan v. State of Kerala [2012 (2) KLT 392] quoted the decision in Subrahmaniyan (supra) ## **Case No. Crl.A.478/2008** -5- with approval 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. 8. In this case, PW4 was admittedly an Assistant Sub Inspector of Police during the relevant period. Admittedly, PW4 detected the offence. He had also seized the contraband and drawn the sample from the contraband. He had also conducted the major part of the investigation. Since PW4 was only an Assistant Sub Inspector of Police, who was not an Abkari Officer, the seizure of the contraband and the investigation conducted by PW4 were without authorisation and jurisdiction. In the said circumstances, the conviction and sentence passed by the ## **Case No. Crl.A.478/2008** -6- court below on the basis of the said seizure and investigation, cannot be sustained. In the said circumstances, the appellant is entitled to be acquitted on this ground alone. 9. Ext.P3 is the property list, which would show that the sample and the contraband were produced before the court only on 26.9.2000. PW4 produced the sample and the contraband before the court. The evidence of PW4 is to the effect that even though he produced the contraband and the sample before the court earlier, the same was returned as the Clerk concerned was not present in the court. However, no document had been produced by PW4 to indicate that he had produced the contraband and the sample before the court as stated by PW4. Ext.P3 property **Case No. Crl.A.478/2008** -7- list does not indicate that he had produced the contraband and the sample before the court at any time prior to 26.9.2000. If PW4 had produced the contraband and the sample before the court as stated by PW4, there would have been an endorsement in this regard on Ext.P3. In this case, the sample and the contraband were produced before the court along with Ext.P3 property list. Ext.P3 property list does not contain any endorsement to the effect that the sample and the contraband were produced before the court at any time prior to 26.9.2000. Therefore, it is not safe to believe the evidence of PW4 in this regard. In the said circumstances, it has to be held that there was unexplained delay from 7.9.2000 to 26.9.2000 in producing the contraband and the sample before the court. Therefore, ## **Case No. Crl.A.478/2008** -8- there cannot be any guarantee that the sample produced before the court and analysed in the laboratory was the sample drawn from the contraband seized from the appellant. In the said circumstances, the appellant is entitled to be acquitted on this ground as well. In the result, this 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/