Vamadevan, Leena Bhavanam, Mattapally Muri, Palamel Village, Mavelikkara v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 8TH DAY OF MARCH 2017/17TH PHALGUNA, 1938** ## **CRL.A.No. 2406 of 2006 ( )** **---------------------------** **AGAINST THE JUDGMENT IN SC 350/2002 of ADDITIONAL DISTRICT & SESSIONS JUDGE, FAST TRACK (ADHOC), MAVELIKKARA DATED 28-11-2006** **APPELLANT(S)/COMPLAINANT:** **-------------------------------------------** **VAMADEVAN, LEENA BHAVANAM, MATTAPALLY MURI, PALAMEL VILLAGE, MAVELIKARA.** **BY ADV. SRI.R.REJI** **RESPONDENT(S)/STATE AND ACCUSED:** **--------------------------------------------------------** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE EXCISE INSPECTOR, EXCISE RANGE, MAVELIKKARA.** **BY PUBLIC PROSECUTOR SMT.K.K.SHEEBA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rmm** ## **K.P. JYOTHINDRANATH, J.** ## **-----------------------------** ## **CRL. A. No.2406 of 2006** ## **------------------------------------** Dated this the 8[th] day of March, 2017 ## **J U D G M E N T** This appeal is preferred against the conviction and sentence dated 28.11.2006 made in SC No.350/2002 on the files of the Additional District & Sessions Judge, Fast Track (Adhoc), Mavelikkara. The conviction is under Section 8(1) and (2) and 55(a) of the Kerala Abkari Act and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for a further period of one year. 2. The facts relevant for consideration of this case is as follows:- On 14.7.2000, at about 7.30 p.m. the accused was found transporting three litres of illicit arrack in a black can having a capacity of ten litre. He was arrested and the articles were seized, as per mahazar sample was taken in a bottle, the sample as well as articles were CRL.A. No.2406/2006 2 sealed. The accused as well as the articles were entrusted to the Excise Range office. The articles along with the accused was produced before the Court, a final report was thereafter filed. The court took cognizance, the matter, committed the case to the Court of Sessions. The case was numbered as Sessions Case, PW1 to 5 examined, Exts.P1 to P7 marked, MO1 is also marked. After appreciating the evidence, the court below convicted the accused as stated above. Aggrieved by the said conviction and sentence this appeal is preferred. 3. When the appeal came up for hearing, the main argument advanced before me is that the person who seized the articles and arrested the accused is a person not authorised to do so. The learned counsel brought to my attention Section 4(d) of the Abkari Act as well as Section 70 of the Abkari Act. It is also submitted before me that the relevant notification is S.R.O. No.234/1967 and it is the submission that as per the said notification, the preventive officers were invested with the powers to be exercised only under Sections 31, 32, 35, 38, 39, 53 CRL.A. No.2406/2006 3 and 59 and not under Section 34 of the Abkari Act. It is the submission that in this case the seizure was made from an open place as seen in section 34. Under such circumstances the seizure is not in accordance with law and without power and it will be vitiated and the dictum laid down by this Court in **Sasidharan v. State of Kerala [2012 (2) KLT 392]** is applicable **.** 4. I heard the Public Prosecutor, prosecutor submitted before me that the main aspect to be considered is that from where the seizure was made. It is the submission that for the said aspect, the whole case has to be appreciated. 5. After hearing the counsel, I perused the case records in this case, Ext.P3 is the seizure mahazar. As per the said seizure mahazar, it can be seen that the place of arrest is while the accused party was travelling through the road and when reached about 50 feet near to one Karayogamandhir, a person was seen moving through the road with a black can. Thus it is apparent and evident that the place of incident is on a public road. As per the CRL.A. No.2406/2006 4 notification referred above that is S.R.O No.234/1967 a preventive officer of the Excise Department on duty within Kerala State to be Abkari Officers under their respective denominations for the purpose of Section 31, 32, 34, 35, 38, 39, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on abkari officers in the Sections aforesaid. 6. As per Section 34 of the Abkari Act it is stated as follows:- “ _Any [Abkari Officer] Department may arrest without warrant in any public thorough fare or open place other than a dwelling house, any person found committing an offence punishable under [this Act] and in any such thorough fare or public place may -_ _(a) seize and detain -_ _(i) any liquor or intoxicating drug;_ _(ii) any materials, still utensil, implement or apparatus;_ _(iii) any receptacle or package or covering ; and (iv)any animal, cart, vessel or other conveyance, which he was reason to believe to be liable to confiscation under this Act;_ _(b) search any person, animal, cart vessel or other conveyance, package, receptacle or covering upon whom or in or upon which he may have reasonable cause to suspect any such liquor or intoxicating drug to be, or to be concealed.”_ ## 7. Thus, the only point to be considered is that CRL.A. No.2406/2006 5 whether as per notification 234/1967 the preventive officer is entitled to conduct an arrest. The original notification is perused and it is seen that Section 34 is there. As such, the contention that the preventive officer is not having the authority to conduct the seizure will not lie. 8. Here in this case no forwarding note is produced or marked. The next point argued before me that even though the detection was on 14.7.2000 the charge was filed before the Court only in 2002. I perused the final report which shows that the final report was filed on 11.01.2002 and received the initial of the Magistrate on 21.01.2002. Thus there is inordinate delay in filing the final report, even though the detection was as back as on 14.7.2000. The submission of the learned counsel on this aspect is that as per Section 50 of the Abkari Act, the investigation under the Abkari Act shall be completed without unnecessary delay. The submission of the learned counsel is that the delay will vitiate the proceedings itself in the light of the decision of this Court. CRL.A. No.2406/2006 6 In **Krishnan H. v. State [2015 (1) KHC 822]** therein, the delay was only nine months whereas in this case the delay is more than 1 ½ years. It is also the submission that by virtue of the decision rendered by this Court in **Sumathy v. State of Kerala [2016 (4) KHC 225]** it is mandatory that the forwarding note has to be proved. 9. Surely when there is an inordinate delay in conducting or completing investigation coupled with the fact that there is no material produced and marked before the court regarding the request made for the Court for chemical analysis which alone will link the analysis report and the sample, I feel that appellant will be entitled for benefit of doubt. I feel that strict compliance of procedure is required when the sentence that has to be imposed is very high under the special statute. In this case, the accused allegedly was in possession only that of three litres of arrack but there was inordinate delay in filing the complaint as well as no copy of the forwarding note is marked. Thus the conviction and sentence passed in S.C.No.350/2002 is hereby set aside. The appellant is CRL.A. No.2406/2006 7 given benefit of doubt. The appeal is allowed. Bail bond stand cancelled. Sd/- **K.P. JYOTHINDRANATH JUDGE** rmm/13/3/2017 // True Copy // P.A. To Judge