High Court of KeralaSingle Judge2020-09-07Appeal allowed; appellant acquitted; conviction...

Yiswanathan v. State of Kerala

Case / Petition Number:CRL.A.No.1313 of 2006

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Narayana Pisharadi
Judgment Date: 2020-09-07
Court Decision / Holding: The appeal is allowed; the conviction and sentence under Section 8(1) of the Abkari Act are set aside. The appellant is acquitted of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. Bail bond is cancelled, and any fine paid shall be refunded. The appellant is to be set at liberty.
Final Disposition: Appeal allowed; appellant acquitted; conviction and sentence under Section 8(1) of the Abkari Act set aside; bail bond cancelled; any paid fine refunded.

Parties to the Case

Appellants / Petitioners

Yiswanathan

Respondents

State of Kerala (represented by the Excise Range Inspector, Karunagappally) through Public Prosecutor, High Court of Kerala, Ernakulam)

Legal Representation & Advocates

Counsels for Petitioners

• Sri. B. Mohanlal

Counsels for Respondents

• Public Prosecutor, High Court of Kerala

Case Synopsis & Summary

Yiswanathan, the appellant/accused in SC 689/2003, was convicted by the Additional Sessions Judge (Ad hoc) II, Kollam, under Section 8(1) of the Abkari Act for possessing two litres of arrack detected on 03.01.2000 near Kochalummoodu Junction, Karunagappally. The trial court sentenced him to two years' rigorous imprisonment and a fine of Rs. 1,00,000; in default, one more year’s imprisonment. On appeal, the Kerala High Court examined serious infirmities in the prosecution case. The detection was by an Assistant Excise Inspector, who, on a date when the officer did not have authority to detect offenses under the Abkari Act, prompted the prosecution’s case to be considered void; the relevant notification empowering such officers to perform Abkari duties was issued in 1967 but did not authorize Assistant Excise Inspectors to conduct search/seizure until 8.5.2009. The court noted material inconsistencies: seal status differed between the spot seizure and the record (Exts. P2 and P3); no evidence on who drew the sample or on forwarding notes; absence of a recorded chain of custody linking the seized sample with the laboratory test. The court also relied on Vijay Pandey v. State of Uttar Pradesh (AIR 2019 SC 3569) to underscore that a laboratory report alone cannot be conclusive without proper correlation with the seized article. Consequently, the trial court’s conviction could not be sustained, and the appeal was allowed, acquitting the appellant of the offence under Section 8(1) (read with 8(2)) of the Abkari Act. Bail bond canceled; refund of any paid fine.

Provisions of Law Cited

Section 8(1) of the Abkari ActSection 8(2) of the Abkari ActSections 40 to 53 of the Abkari ActSRO No.234/1967SRO No.361/2009

Legal Doctrines & Maxims

Detection by an officer not competent under the Abkari Act vitiates the prosecution (as applied by Subrahmaniyan v. State of Kerala, 2010 (2) KHC 552 : 2010 (2) KLT 470)
Evidence must connect the seized sample with the laboratory analysis; mere presence of a laboratory report is not conclusive (Vijay Pandey v. State of Uttar Pradesh, AIR 2019 SC 3569)
Co-relation between the sample seized and the sample tested is essential; absence of such linkage renders the prosecution unreliable.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the detection of the offence by an Assistant Excise Inspector was unauthorized under the Abkari Act at the relevant time; as per notification SRO 234/1967, officers not below Excise Inspector could perform Abkari duties, but the officer in question had no power to conduct search/seizure on 03.01.2000. The prosecution’s case is further weakened by lack of sealing evidence at the spot, conflicting accounts of sampling, no forwarding note, and no proper chain of custody linking the seized sample to the laboratory analysis. The trial court’s reliance on the chemical report alone is insufficient; co-relations must be established (per Vijay Pandey).

Contentions of Respondents

The State’s submissions, as reflected in the records, relied on the evidence of PW2 and the documents (Exts. P1–P4) supporting conviction. The prosecution argued that the materials were sufficient to prove possession of arrack under the Abkari Act, and that the detection and seizure were properly recorded. The High Court, however, found that the prosecution was vitiated due to lack of authority of the detecting officer and other corroborative deficiencies, leading to acquittal.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Subrahmaniyan v. State of Kerala	2010 (2) KHC 552 : 2010 (2) KLT 470	Positive	Cited as authority that detection by an officer not authorized under the Abkari Act vitiates the prosecution.
Parathi Sasidharan v. State of Kerala	2012 (2) KLT 392	Positive	Cited in the context of the same principle regarding authority of detecting officers.
Vijay Pandey v. State of Uttar Pradesh	AIR 2019 SC 3569	Positive	Cited for the principle that a laboratory report cannot be conclusive unless there is proper correlation with the seized article.

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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** **MONDAY, THE 07TH DAY OF SEPTEMBER 2020 / 16TH BHADRA, 1942** ## **CRL.A.No.1313 OF 2006** **AGAINST THE JUDGMENT IN SC 689/2003 DATED 23-06-2006 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOLLAM** ## **APPELLANT/ACCUSED:** **YISWANATHAN** **S/O.SREEDHARAN, PARAMBIL THEKKATHIL VEEDU,(PUNTHALA VEEDU) NUMBARVIKALA MURI, KARUNAGAPPALLY VILLAGE,, KARUNAGAPPALLY TALUK, FROM POND VADAKKATHIL VEEDU,, MYNAGAPPALLY MURI, MYNAGAPPALLY VILLAGE,, KUNNATHOOR TALUK,KOLLAM DISTRICT.** **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE EXCISE RANGE INSPECTOR,, KARUNAGAPPALLY, KOLLAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SMT MAYA M N -PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-08-2020, THE COURT ON 07-09-2020 DELIVERED THE FOLLOWING:** Crl.A.No.1313/2006 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.1313 of 2006 ---------------------------------------------Dated this the 7[th] day of September, 2020 ## **J U D G M E N T** The appellant is the accused in the case S.C.No.689/2003 on the file of the Court of the Additional Sessions Judge, Kollam. 2. The prosecution case is that, on 03.01.2000, at about 12:30 hours, at the public road near Kochalummoodu Junction in Karunagappally Village, the Assistant Excise Inspector of Karunagappally Excise Range found the appellant/accused in possession of a can containing two litres of arrack. 3. The trial court framed charge against the accused for the offence under Section 8(1) of the Abkari Act. The appellant/accused pleaded not guilty to the offence and he claimed to be tried. 4. The prosecution examined PW1 to PW4 and marked Exts.P1 to P4 documents and MO1 material object. No evidence Crl.A.No.1313/2006 3 was adduced by the accused. 5. The trial court found the accused guilty of the offence under Section 8(1) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo imprisonment for a further period of one year. 6. Aggrieved by the order of conviction and sentence passed against him by the trial court, the accused has filed this appeal. 7. Heard. Perused the records. 8. The Assistant Excise Inspector who detected the offence was not examined by the prosecution on the ground that he was bed-ridden. PW2 is the Preventive Officer who was in the excise party led by the Assistant Excise Inspector. He has given evidence regarding the occurrence in detail. The documents prepared and signed by the Assistant Excise Inspector were proved through PW2. Crl.A.No.1313/2006 4 9. PW1 is the independent witness examined by the prosecution. He did not support the prosecution case. He even denied the signature in Ext.P1 seizure mahazar. 10. PW3 is the Excise Inspector before whom the Assistant Excise Inspector who detected the offence had produced the accused and the articles and the records. PW4 is the Excise Inspector who conducted the investigation of the case and filed chargesheet against the accused. 11. Ext.P4 is the chemical analysis report received in respect of the sample of liquid which was forwarded for analysis. It shows that the sample of liquid contained 33.39% by volume of ethyl alcohol. 12. After perusing the evidence adduced by the prosecution and the judgment of the trial court, I find that the conviction entered against the appellant/accused by the trial court cannot be sustained. The reasons are as follows. 13. The offence was detected by an Assistant Excise Inspector. An officer in the rank of an Assistant Excise Inspector had no authority or power under the Abkari Act, during the Crl.A.No.1313/2006 5 relevant period, to detect an offence under the Abkari Act. When the detection of the offence is by an officer not competent under the Abkari Act, the entire prosecution initiated on the basis of such action is vitiated. 14. The notification empowering the officers of the Excise Department to exercise the powers under the Abkari Act was issued in the year 1967. As per Notification SRO No.234/1967, all officers of the Excise Department, not below the rank of Excise Inspector, were appointed as Abkari Officers to perform the acts and duties mentioned in Sections 40 to 53 of the Abkari Act, within the areas for which they were appointed. This notification was in force on 03.01.2000, that is, the date of detection of the offence in this case. As on that date, an Assistant Excise Inspector had no power to conduct search and seizure under the Abkari Act. As per the notification SRO No.361/2009 dated 8.5.2009, Assistant Excise Inspectors have been empowered to exercise all the powers and to perform all the duties of Excise Inspector, subject to the control of the Excise Inspector. Admittedly, the detection of the offence in this case was prior to Crl.A.No.1313/2006 6 the date 8.5.2009. It follows that, in the instant case, the Assistant Excise Inspector had no authority to conduct search and seizure. The prosecution initiated against the accused on the basis of his action is not maintainable (See **Subrahmaniyan v. State of Kerala: 2010 (2) KHC 552 : 2010 (2) KLT 470** and **Parathi Sasidharan v. State of Kerala : 2012 (2) KLT 392** ). 15. There are also other infirmities in the prosecution case. PW2 Preventive Officer has deposed that the can seized from the possession of the accused was sealed at the spot of the occurrence. Ext.P2 is the crime and occurrence report prepared by PW3 Excise Inspector on production of the can before him by the Assistant Excise Inspector who detected the offence. The description of the articles seized given in Ext.P2 crime and occurrence report does not show that the can produced before PW3 was in a sealed condition or that there was any seal on it. Ext.P3 is the property list prepared by PW3 for producing the can before the court. The description of the can given in Ext.P3 property list shows that it was in a sealed condition and that there was seal on it. It indicates that there was no seal on the Crl.A.No.1313/2006 7 can which was produced before PW3 by the Assistant Excise Inspector who detected the offence and that no seal was affixed at the spot of the occurrence by the detecting officer but the seal on the can was affixed at the excise range office before it was produced before the court as per Ext.P3 property list. 16. There is no evidence as to who had taken the sample of liquid from the can which was produced before the court. The property clerk of the Magistrate's Court concerned was not examined by the prosecution. There is also no record relating to drawing of sample of liquid from the can which was produced before the court as per Ext.P3 property list. 17. Copy of the forwarding note which should have been prepared for sending the sample for analysis was not marked in evidence. Absence of forwarding note in evidence means absence of evidence connecting the sample which was forwarded for analysis and the sample which was tested in the laboratory. 18. Mere production of a laboratory report that the sample tested was contraband substance cannot be conclusive by itself. The sample seized and that tested have to be co-related. (See Crl.A.No.1313/2006 8 **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** ). 19. The trial court has not taken into consideration the aforesaid vital infirmities in the prosecution case. In such circumstances, the conviction entered against the appellant/accused by the trial court cannot be sustained. 20. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court under Section 8(1) of the Act is set aside. The appellant/accused is found not guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and he is acquitted of that offence. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. ## (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr True Copy P S to Judge