High Court of KeralaSingle Judge2019-09-04Appeal allowed; conviction and sentence set asi...

Shankaran son of Podan v. State of Kerala

Case / Petition Number:CRL.A.No.25 of 2008

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Narayana Pisharadi
Judgment Date: 2019-09-04
Court Decision / Holding: Appeal allowed; conviction and sentence under Section 55(a) of the Abkari Act set aside; the appellant acquitted; bail bond, if any, cancelled; any fine paid refunded; appellant to be set at liberty.
Final Disposition: Appeal allowed; conviction and sentence set aside; appellant acquitted; liberty to go; refunds of any fine and cancellation of bail if applicable.

Parties to the Case

Appellants / Petitioners

Shankaran son of Podan, Parambath, Karthikappally Amsoom, Kurinhaliyode

Respondents

State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam
The Sub Inspector of Police, Edacherry

Legal Representation & Advocates

Counsels for Petitioners

• Sri K. Ramakumar (Sr.)
• Sri T. Ramprasad Unni
• Sri Saritha David Chunkath

Counsels for Respondents

• Public Prosecutor, High Court of Kerala
• Sri E.C. Bineesh

Case Synopsis & Summary

Shankaran, the appellant, was convicted under Section 55(a) of the Abkari Act, 1077 by the Sessions Court for possessing 5.985 litres of Indian Made Foreign Liquor (IMFL) without authority, seized at Orkkatteri by the Edacherry Police. The prosecution case rested on 11 bottles of liquor found in two bags, with samples sent to chemical analysis (Ext. P7) showing ethyl alcohol. The trial court framed the charge under Rule 9 of the Foreign Liquor Rules and sentenced the appellant to one year’s rigorous imprisonment and a fine of Rs. 1,00,000, with an additional six months of imprisonment for default. PW1 (the Sub Inspector) and PW2 (a constable) testified consistently regarding the seizure; PW3, an independent witness, admitted his signature on the mahazar (Ext. P3) and on MO1 bottle labels, though he denied direct knowledge of the occurrence. On appeal, the key issue was the legitimacy of the investigation. The High Court concluded that an Abkari offence can only be investigated by an Abkari Officer. PW6, a Sub Inspector from the police control room in Vatakara, conducted the investigation, but there was no evidence that he had authority to act as an Abkari Officer within the Edachery jurisdiction. The Government notification and relevant sections were examined, and several Kerala high court precedents were cited to stress territorial limits. Consequently, the conviction could not stand for lack of valid Abkari investigation, and the appeal was allowed, resulting in acquittal of the appellant and release, with any fine refunded and bail, if any, cancelled.

Provisions of Law Cited

Section 55(a) of the Abkari Act, 1077Rule 9 of the Foreign Liquor RulesSRO No.725/2003 (G.O.(P)127/03/TD dated 02.08.2002)SRO No.321/96 (G.O.(P)69/96/TD dated 29/03/1996)G.O.(P)127/03/TD (SRO 725/2003)Sections 31 to 35, 38, 40 to 53 and 59 of the Abkari Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant pleaded not guilty and challenged the conviction under Section 55(a) of the Abkari Act. He argued that the investigation was conducted not by an Abkari Officer but by PW6, a Sub Inspector, without proper territorial authority, making the conviction unsustainable. He also contended that the quantity of liquor (5.985 litres) exceeded permissible limits under the relevant notification, indicating lack of authority for possession. The defence stressed that the Abkari investigation requires an Abkari Officer within the jurisdiction of Edachery police station and that the non-Abkari officer’s intervention voids the process.

Contentions of Respondents

The State contended that the seized IMFL was in illegal possession and the evidence, including PW1’s and PW2’s testimonies and Ext. P7 analysis, established the offence. It was argued that under appropriate notifications, an Abkari Officer’s powers could be exercised, and the investigation by PW6 did not vitiate the proceedings due to statutory provisions. The prosecution maintained that the conviction should stand unless demonstrably proven otherwise.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Kunhanna Poojari v. State of Kerala	2019 (4) KHC 292	Mentioned Only	Cited to illustrate territorial jurisdiction limits of Abkari Officers; not expressly applied to overrule or distinguish in the present decision.
Narayanankutty v. State of Kerala	2015 (1) KHC 702	Mentioned Only	Cited on the point of territorial authority of Abkari Officers.
Rajappan v. State of Kerala	2016 (3) KHC 356	Mentioned Only	Cited regarding jurisdictional limits of Abkari Officers.
Velutha v. Sub Inspector of Police	2016 (4) KHC 206	Mentioned Only	Cited about territorial jurisdiction; used to support the argument on Abkari Officer authority.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** ## **CRL.A.No.25 OF 2008** **AGAINST THE JUDGMENT IN SC 43/2005 DATED 10-12-2007 OF SESSIONS JUDGE, KOZHIKODER** ## **APPELLANT/ACCUSED:** **SHANKARAN SON OF PODAN,PARAMBATH, KARTHIKAPPALLY AMSOM, KURINHALIYODE.** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SMT.SARITHA DAVID CHUNKATH** ## **RESPONDENT/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 2 THE SUB INSPECTOR OF POLICE EDACHERRY. R1 BY PUBLIC PROSECUTOR SRI. E.C. BINEESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2019, THE COURT ON 04-09-2019 PASSED THE FOLLOWING:** Crl.A.No.25 of 2008 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.25 of 2008 --------------------------------------------Dated this the 4[th] day of September, 2019 ## **J U D G M E N T** The appellant is the accused in the case S.C.No.43/2005 on the file of the Assistant Sessions Court, Vatakara. The appeal is filed assailing the conviction entered and sentence passed against him under Section 55(a) of the Abkari Act, 1077. 2. The prosecution case is that, on 10.04.2003, at about 19.40 hours, at the place Orkkatteri, the Sub Inspector of Edachery police station found the appellant/accused having in his possession a total quantity of 5.985 litres of Indian Made Foreign Liquor (for short 'IMFL') without any authority. The liquor was of different kinds and brands and it was contained in 11 bottles. The appellant was carrying two plastic bags containing the liquor bottles. It is alleged that the liquor found in the possession of the appellant was permitted to be sold only in Pondicherry. The Crl.A.No.25 of 2008 3 Sub Inspector took samples of the alleged liquor and seized the bottles of liquor as per Ext.P3 mahazar. He registered Crime No.117/2003 of Edachery police station against the appellant under Section 55(a) of the Abkari Act. Another Sub Inspector conducted the investigation of the case. After completing the investigation, yet another Sub Inspector filed charge sheet against the appellant for the offence under Section 55(a) of the Abkari Act. 3. The appellant pleaded not guilty to the charge framed by the trial court under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules. The prosecution examined PWs 1 to 7 and marked Exts.P1 to P8 and MO1 to MO4. No oral evidence was adduced by the appellant but Ext.D1 document was marked on his side. 4. The trial court found the appellant guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo Crl.A.No.25 of 2008 4 rigorous imprisonment for a period of six months. 5. Heard learned senior counsel who appeared for the appellant and the learned Public Prosecutor and also perused the records. 6. PW3 is the independent witness examined by the prosecution to prove the occurrence. He denied having seen the occurrence. But, he admitted his signature in Ext.P3 mahazar. He also admitted his signature on the label affixed on MO1 series bottles. 7. PW1 is the Sub Inspector who detected the offence. He has given evidence regarding the occurrence almost in tune with the prosecution case. PW2 was the police constable who was in the police party led by PW1. His evidence, more or less, corroborates the testimony of PW1 on the material particulars of the occurrence. 8. Ext.P7 chemical analysis report shows that the samples of liquid sent for analysis contained ethyl alcohol. 9. PW1 has sworn to the entire incident in necessary details. His evidence, on all material particulars, is corroborated Crl.A.No.25 of 2008 5 by the evidence of PW2. There is no striking improbability or material contradiction or discrepancy in the evidence of PW1 and PW2 regarding the seizure of 11 bottles of IMFL from the possession of the appellant. There is nothing to show that the police officers had falsely implicated the appellant with a view to settle any personal score with him. In such circumstances, there is no sufficient ground to disbelieve the evidence of PW1 and PW2 regarding the seizure of 5.985 litres of IMFL from the possession of the appellant. 10. The liquid found in the possession of the appellant was made for sale only in Pondicherry. The appellant has no case that he had any authority to possess such liquor. Even if it is accepted that the appellant needed no permit or licence to possess such liquor in the State of Kerala, it is to be noted that, as per the notification SRO No.725/2003 published as G.O.(P) No.127/03/TD dated 02.08.2002, the maximum quantity of IMFL which could have been possessed and transported by a person was only three litres. 11. However, conviction entered against the appellant Crl.A.No.25 of 2008 6 under Section 55(a) of the Abkari Act cannot be sustained on a technical ground. Investigation of an abkari offence can be done only by an Abkari Officer. The investigation in this case was conducted by PW6 who was the Sub Inspector of the police control room in Vatakara. The occurrence had taken place within the limits of Edachery police station. In exercise of the powers under Section 4 of the Abkari Act, the Government have issued a notification as G.O.(P) No.69/96/TD dated 29/03/1996 which was published in the gazette as S.R.O.No.321/96. As per this notification, 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 have been appointed as Abkari Officers under their respective jurisdiction for the purposes of Sections 31 to 35, 38, 40 to 53 and 59 of the Abkari Act and to exercise all the powers and to discharge all the duties conferred and imposed on the Abkari Officers in the aforesaid sections. A close scrutiny of the terms of the notification referred to above would show that a police officer in the rank of Sub Inspector, who is invested with the powers of an Crl.A.No.25 of 2008 7 'Abkari Officer', has authority to exercise such powers only within his jurisdiction, which includes territorial jurisdiction. He cannot exercise the powers of an 'Abkari Officer' outside his territorial jurisdiction (See Kunhanna Poojari v. State of Kerala : 2019 (4) KHC 292, Narayanankutty v. State of Kerala : 2015 (1) KHC 702 Rajappan v. State of Kerala : 2016 (3) KHC 356 and Velutha v. Sub Inspector of Police : 2016 (4) KHC 206). In the instant case, there is no evidence to find that PW6 had authority to exercise the powers of a Sub Inspector within the limits of Edachery police station. If he had no such authority, he had no authority to exercise the powers of an Abkari Officer also within the limits of Edachery police station. 12. PW6 has stated that he was directed to conduct the investigation of the case. He has not stated who gave him such direction. No superior officer of PW6 had authority to invest him with the powers of an Abkari Officer. The direction, if any, given by any superior officer of PW6 did not confer any power upon PW6 to conduct the investigation of the case. The authority, if any, granted by the superior officers of PW6 for exercising Crl.A.No.25 of 2008 8 powers of an Abkari Officer beyond his territorial limits of jurisdiction was not valid (See Narayanankutty v. State of Kerala: 2015 (1) KHC 702). 13. When the investigation of an abkari offence was conducted not by an Abkari Officer as defined under the Abkari Act, conviction entered against the accused cannot be sustained (See Kunhanna Poojari v. State of Kerala : 2019 (4) KHC 292 and Mahesh v. State : 2017 (1) KHC 120). 14. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant by the trial court under Section 55(a) of the Abkari Act is set aside. The appellant is found not guilty of the aforesaid offence and he is acquitted. Bail bond, if any, executed by the appellant stands cancelled and he is set at liberty. Fine amount, if any, remitted by the appellant shall be refunded to him. ## (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge