Unni v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 13TH DAY OF JUNE 2018 / 23RD JYAISHTA, 1940 ## **CRL.A.No. 553 of 2007** SC 503/2005 of ADDL.SESSIONS COURT (ADHOC)-II, THODUPUZHA CP 52/2005 of J.M.F.C.-I(FOREST OFFENCES),THODUPUZHA ## APPELLANT UNNI, S/O. KUMARAN, KOLLIYIL VEETTIL, MOOLAMATTOM KARA,, ARAKKULAM VILLAGE, THODUPUZHA. BY ADVS.SRI.P.SANJAY SRI.BIJU MEENATTOOR SMT.BHADRAKUMARI, AMICUS CURIAE ## RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, IDUKKI RANGE,, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR, SHRI E C BINESSH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl. Appeal No.553 of 2007 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of June 2018 ## JUDGMENT The appellant was convicted by the court below under Sections 55(a) and (i) of the Abkari Act. The appellant was sentenced by the court below under Section 55(i) of the Abkari Act. No separate sentence was also awarded under Section 55(a) of the Abkari Act. 2. The prosecution allegation can be briefly stated as follows:- On 7.7.2003 at about 12.35 p.m., PW2 and party conducted a raid in Asoka hotel, Moolamattom. During the Crl.A.553/07 : 2 : course of raid, 14 bottles of coloured liquor, each bottle having a capacity of 375 ml each and one bottle having 150 ml. were found kept inside a jute sack under the table on the western side of the hall of the said hotel. The appellant was present at that time in the hotel. PW2 tested the contents in one of the bottles by smelling and tasting the same and PW2 was convinced that the content inside the bottle was illicit liquor. PW2 arrested the appellant and seized the contraband as per Ext.P2 mahazar. He also drew the sample from one of the bottles as per Ext.P2 mahazar. Thereafter, the appellant was taken to the Excise office along with the contraband article and the contemporary records. Thereafter, PW2 registered the crime. The investigation was conducted by PW5. After completing the Crl.A.553/07 : 3 : investigation, PW5 filed the final report before the court. 3. Since there is no representation for the appellant, this court appointed Adv.Smt.K.B.Bhadrakumari, as the Amicus Curiae to argue the case for the appellant. 4. Heard the learned Amicus Curiae and the learned Public Prosecutor. 5. The learned Amicus Curiae has argued that there is absolutely no material before the court to show that the appellant possessed the contraband articles and in the said circumstances, the conviction and sentence passed by the court below cannot be sustained. PW5 was the Investigating Officer. He stated that the building was in the name of Mr.Avarachan. PW5 further stated that he did not condcut any investigation to find out the whereabouts Crl.A.553/07 : 4 : of the person, who was conducting the above said hotel during the relevant period. 6. Even in the absence of any evidence, the court below held in paragraph 10 that the confession given by the appellant to PW2, the Detecting officer, was admissible in evidence, as the Detecting officer was not a police officer. The above finding of the court below is perverse and incorrect as the Excise Officers were Police Officers under the Abkari Act with effect from 3.6.1997, as they were vested with the power to file the final report under Section 173(2) Cr.P.C. as per the amendment to Section 50 of the Abkari Act. This court in Joseph V. v. State of Kerala [2009(4) KHC 537] held that after the amendment of Section 50 of the Abkari Act, the Abkari Officers could file Crl.A.553/07 : 5 : final report in accordance with Section 173(2) Cr.P.C. and thereby, the Abkari Officers were transformed to the status of Police Officers with effect from 3.6.1997 in a prosecution under the Abkari Act and hence, any confession made to an Abkari Officer after 3.6.1997 would be deemed to be a confession made to a Police officer within the meaning of Section 25 of the Evidence Act. 7. In view of the above reason, the confession made by the appellant to PW2, cannot be used for any purpose. The prosecution did not adduce any material to show that the appellant was the licensee of the said shop or that the appellant was in possession of the contraband seized from the said shop. It is true that the appellant was present in the hotel at the relevant time. The appellant had a contention Crl.A.553/07 : 6 : that his brother was conducting the said shop. However, no effort was taken by the Investigating Officer to find out the licensee of the said shop. It was admitted by PW2 that the brother of the appellant was also present in the hotel at the relevant time. Having gone through the relevant inputs, I am fully convinced that the prosecution could not establish that the appellant was in possession of the contraband seized in this case. In the said circumstances, the conviction and sentence passed by the court below cannot be sustained. In the result, this Appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted for the said offences. The bail bond of the appellant stands discharged. Crl.A.553/07 : 7 : Before parting with, this court places on record the appreciation for the valuable assistance rendered by the learned Amicus Curiae, Adv.Smt.K. B. Bhadrakumari in disposing of this appeal. ## sd **B.SUDHEENDRA KUMAR, JUDGE** _dl/13.6.18_ _// True copy // PA to Judge_