VANNICHI MOIDU @ VAZHAYIL MOIDU vs STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018/9TH KARTHIKA, 1940** ## **CRL.A.No.1231 of 2006** **AGAINST THE JUDGMENT IN SC 199/2004 of ADDL.SESSIONS COURT (ADHOCI), KALPETTA DATED 30-05-2006** ## **APPELLANT/ACCUSED:** **VANNICHI MOIDU @ VAZHAYIL MOIDU, S/O.ALI, VELLAMUNDA, MANANTHAVADY, VAYANADU DISTRICT.** **BY ADVS. SRI.LALJI P.THOMAS SRI.S.SANTOSH KUMAR (PERUNAD)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **PP. SMT. MAYA M.N.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.A.No.1231 of 2006 2 **MARY JOSEPH, J --------------------------------------------------Crl.A No.1231 of 2006 --------------------------------------------------Dated this the 31[st] day of October, 2018** ## **J U D G M E N T** This appeal is directed against the judgment dated 30.5.2006 in S.C.No.199/2004 on the files of the Additional Sessions Judge, (Adhoc)-I, Kalpetta (for short 'the court below'). The appellant is the sole accused involved in the case. He was found guilty by the court below and convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,00,000/- and to undergo rigorous imprisonment for three months in default of payment of fine. Aggrieved by the judgment as aforesaid, the accused has approached this Court in the captioned appeal. 2. Sri.Lalgi P.Thomas, the learned counsel advanced arguments on behalf of the appellant and Smt.Maya M.N, the learned counsel advanced arguments on behalf of the prosecution. 3. The facts of the prosecution case in brief are to the following effect: At 11.30 am on 21.4.2001 eight bottles of Indian Made Foreign Liquor meant for sale, in contravention of the provisions of the Abkari Act and Rules was found kept on the tiled roof of the lean-to of a building bearing No.VP-IV/160 situated near 8/4-A UP School at Vellamunda amsom and belonging to the accused. The contraband CRL.A.No.1231 of 2006 3 was detected by the Head Constable of Police, Vellamunda Police Station. Investigation was conducted by the Sub Inspector of Police, Vellamunda Police Station and the final report was laid by his successor Sub Inspector of Police, who assumed charge of the post in the aforesaid police station, later on. 4. After detection and seizure of the contraband, samples have been drawn therefrom. A seizure mahazar was also prepared from the spot. The accused was arrested from the spot. The accused along with the properties seized from the spot were produced before the Vellamunda Police Station and entrusted to the Sub Inspector of Police. Investigation in the case was conducted by him and after concluding, a final report was laid before the Judicial First Class Magistrate Court-I, Mananthavady. Having found that the offence involved is exclusively triable by a Court of Sessions, the case was committed to the Court of Sessions, Kalpetta by C.P. No.96/2003. After a preliminary hearing, charge was framed under Section 55(a) of the Act against the accused. The charge was read over and explained to the accused to which he pleaded not guilty and faced the trial. 5. The prosecution had examined PW1 to PW7 and marked Exts.P1 to P6. MO1 series, MO2 series and MO3 were also marked. On closure of the prosecution evidence, the accused was questioned under Section 313(i)(b) Cr.P.C with reference to the incriminating CRL.A.No.1231 of 2006 4 circumstances brought against him by the prosecution. The accused denied all the incriminating questions put to him and raised a specific plea of false implication. Though called upon to enter on defence, the accused did not adduce any evidence. 6. The learned Public Prosecutor and the learned counsel for the defence were heard. The evidence on record was appreciated. Accordingly, the court below arrived at a finding of guilt of the accused under Section 55(a) of the Act and convicted and sentenced him by the judgment under challenge. The aggrieved accused is before this Court in the captioned appeal, seeking for a reversal of the judgment under challenge. 7. Sri.Lalgi P.Thomas the learned counsel has contended that the case of the prosecution is vitiated mainly for three reasons. The first reason was that the quantity of the contraband involved in the case was 3.75 liters and is within the permissible quantity liable to possess. The second argument was based on the delayed production of the properties seized, before the court. There was a delay of 13 days for production of the properties before the court and there is total want of explanation for the delay. According to the learned counsel the unexplained delay would vitiate the case of the prosecution. The argument putforth thirdly by the learned counsel was that the detection, search, seizure and the sampling of the contraband in the case on hand were done by an official, who was CRL.A.No.1231 of 2006 5 then the Head Constable of Vellamunda Police Station and therefore, not an authorised officer. According to him, the detection, search, seizure and sampling having been done by an official without authority, those are vitiated. 8. Raising contentions as above, the learned counsel canvassed for a reversal of the judgment under challenge. 9. The learned Public Prosecutor has submitted on the contrary that there is ample evidence indicative of guilt against the accused. According to her the prosecution has succeeded in establishing the guilt against the accused and accordingly, the judgment under challenge is not liable to be interfered with. 10. The rival contentions advanced from either parties to the appeal have been tested in the backdrop of the evidence available on record. As put forth by the learned counsel, it is evidenced that the properties seized from the spot reached the court after 13 days of seizure. According to the excise official, who had conducted the search and seizure, the properties have been kept in his safe custody for the delayed period. It is also deposed by the officials that the production of properties was delayed totally due to his busy official engagements. Undoubtedly, the reasons furnished by PW7, the Head Constable of Police, who was the detecting officer in the case on hand for the delayed production is not an acceptable one. He being an Abkari Officer is directed by the provisions of the Act to conduct CRL.A.No.1231 of 2006 6 in a manner strictly and cannot act in a leisurely manner and if any unnecessary delay was occurred, he will be answerable for that. In the case on hand, the properties have been seized on 21.4.2001 and were produced before the court delayed by 13 days. PW7 has not stated specifically about the nature of the duty in which he was engaged at the relevant time and to which duty, he has given prime importance than production of the contraband before the court. Therefore, the explanation furnished by PW7 not being specific and indicative of his inability to do so, but only general, cannot be accepted as a cogent one. Therefore, there is unexplained delay of 13 days in production of the properties before the court and that is fatal to the prosecution. 11. The argument secondly advanced by the learned counsel was that the quantum of contraband seized from the accused being 3.75 ml., is within the permissible quantity and therefore the offence charged against him will not be attracted. The learned counsel has drawn my attention to SRO No.225/1998 to rest his contention. It is true that by virtue of SRO No.225/1998, the quantity of contraband of the nature permitted to be possessed is 4.5 litres. In the case on hand the contraband involved is Indian Made Foreign Liquor and the quantity is only 3.75 litres. But the learned counsel is unmindful of the factum that SRO No.225/1998 was superseded by SRO No.125/1999 by which the permissible quantity has been reduced to CRL.A.No.1231 of 2006 7 1.5 litres. Therefore, the quantity of contraband involved in the case being 3.75 litres, the quantity involved is undoubtedly excess quantity. Therefore, the argument by the learned counsel that the quantity of the contraband possessed by the appellant is below permissible quantity will not sustain and is only liable to be thrown out as untenable. 12. The argument thirdly advanced by the learned counsel was that PW7, the Head Constable of Police of Vellamunda Police Station who had played the role of an Abkari Officer in the case on hand is not one empowered by the Act. According to him, the search and seizure and other associated formalities performed by PW7 cannot be said to be legal. The counsel has relied on **Thankamony v. State of Kerala [(2007(3) KLT SN 19 (C.No.20)]** to rest his contention. In the backdrop of the arguments advanced, it is relevant to have a look at SRO No.321/1996, which was laid by the Government in exercise of the power conferred on it under Section 4 of the Act. Among the categories of officers enumerated in the notification supra, Head Constable of Police is not included. Only officers of and above the rank of Sub Inspector of Police of the Police Department are empowered. The Head Constable of Police being an officer inferior in rank to Sub Inspector of Police, cannot transact as an Abkari Officer. Therefore, the search, seizure and other associated formalities performed by PW7 from the place of seizure and from his CRL.A.No.1231 of 2006 8 office and the investigation conducted in the case on hand is undoubtedly tainted with illegality and thereby vitiated. In the result, the appeal stands allowed. The judgment under challenge is set aside. The bail bond of the accused is cancelled and the accused is set at liberty. Sd/- **MARY JOSEPH Judge** ab