IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN FRIDAY, THE 23RD DAY OF DECEMBER 2011/2ND POUSHA 1933 CRA.No. 307 of 2004 (A) ==================== SC.135/2001 of ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK (ADHOC)-II, KOZHIKODE APPELLANT/ACCUSED ================== BALAKRISHNAN, S/O.MURIYALAN, AALATHODY VAYALIL KINALUR AMSOM MUNDAKKATH DESOM KOYILANDY TALUK. BY ADV.SRI.SUNNY MATHEW RESPONDENT/COMPLAINANT ========================== THE SUB INSPECTOR OF POLICE, BALUSSERY POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SMT. S. HYMA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23-12-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SD P.S.GOPINATHAN, J --------------------------- Crl.A.No. 307 OF 2004 -------------------------- Dated this the 23rd day of December, 2011. J U D G M E N T The appellant was convicted by the Addl. Sessions Judge, Kozhikode in Sessions Case No.135/2001 for offence under Section 55(a) of the Abkari Act and sentenced to rigorous imprisonment for one year and a fine of Rs.1,00,000/- with default sentence of simple imprisonment for 6 months. Assailing the above conviction and sentence, this appeal is preferred. 2. The prosecution case is that at 8.30 PM on 26-06-1999, PW1, the Assistant Sub Inspector of Police, Balussery Police Station found the appellant possessing 1 litre of arrack in a jerry can, having a capacity of 5 litres and pouring the same to a glass for sale at Kunhupillapara. The appellant was arrested and the contraband was seized for which Ext.P2 seizure mahazar, wherein PWs3 and 4 are attesters was prepared. 180 ml was taken in two bottles as samples and sealed. The samples were subjected to Crl.A.No. 307 OF 2004 2 Chemical Examination. On analysis, it was found containing 39% and 30.16% by volume of Ethyl Alcohol. The investigation was taken over by PW5 who was later succeeded by PW6. PW6 after completing the investigation submitted the charge sheet alleging offences under Sections 55(a),(i) and 58 of the Abkari Act before the Judicial Magistrate of the First Class, Koyilandi. Since the offence alleged is triable by the court of Session, the learned Magistrate committed the case to the court of Session, Kozhikode by order dated 15.03.2001. The case was subsequently made over to the Addl. Sessions Judge. Responding to the process, the appellant entered appearance and pleaded not guilty when the charge was framed and read over. Therefore, he was sent for trial. On the side of the prosecution, PWs1 to 6 were examined and Exts.P1 to P10 were marked. The appellant took a plea of total denial. No defence evidence was let in. On appraisal of the evidence, the learned Addl.Sessions Judge arrived at a finding that the prosecution has succeeded in establishing the offence under Section 55 (a) of the Abkari Act. Consequently the appellant was convicted and sentenced as above. Crl.A.No. 307 OF 2004 3 3. I have heard Adv.Sri.S.R.Sreejith and Smt.S.Hyma the learned Govt. Pleader. Perused the judgment impugned and evidence on record. 4. PW1, the Asst.Sub Inspector of Police and PW2, a Police constable have given evidence in support of the arrest and seizure. The arrest and seizure deposed by PWs1 and 2 were believed by the trial court, though Pws3 and 4 who are independent witnesses turned hostile. Going by Ext.P10 analysis report it is established that the liquid that the appellant was carrying is nothing but country arrack. 5. Section 31 of the Abkari Act authorises a police officer not below the rank of Sub Inspector or a Police station officer alone to conduct search or seizure. There is no whisper in the evidence of PW1 that he was the Station house officer as on the date of the arrest and seizure. Of course, in cross examination it is mentioned that he was in charge duty. By the charge duty what he intented during the cross examination is not at all specified. In the event PW1 was the station house officer as on the date it should have been specifically deposed by PW1 in chief Crl.A.No. 307 OF 2004 4 examination itself. The prosecution cannot not stand on the materials disclosed in cross examination. In the absence of evidence that PW1 was the police station charge officer, I find that the search and seizure conducted by PW1 cannot be the basis for the conviction as PW1 is not authorized or competent to conduct any search or seizure. Benefit shall go to the appellant. Therefore, I find that the conviction and sentence under challenge are not sustainable. In the result, this appeal is allowed. While setting aside the conviction and sentence under challenge, the appellant would stand acquitted. The fine amount, if any, deposited shall be refunded. The appellant shall appear before the trial court and execute a bail bond as contemplated under Section 437A of the Code of Criminal Procedure in such terms as prescribed by the trial judge, failing which the trial court shall take coercive steps and get a bail bond executed. Sd/- P.S.GOPINATHAN, JUDGE //True Copy// P.A to Judge