IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 CRL.A.No. 1969 of 2010(A) ------------------------- SC.434/2008 of ADDL. SESSIONS COURT (ADHOC), THALASSERY CP.165/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MATTANNUR .................... APPELLANT(S): -------------- PUZHAKKARA SONY,S/O.ANTONY, C.NO.8574,CENTRAL PRISON, KANNUR. BY ADV. MINI ELIZABETH GEORGE(STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, JUDGE ----------------------------------- Crl.A.No.1969 of 2010 ------------------------------------------------- Dated this 2nd day of September, 2011. JUDGMENT The sole accused in Sessions Case No.433/2008 is the appellant herein, who challenges his conviction and sentence for the offence u/s.8(1) read with Section 8(2) of Kerala Abkari Act and Rules. 2. The prosecution case is that on 12.2.2007 at 5.30 p.m the appellant/accused was found, at the Ulikkal-Kolithattu public road in front of the house of one Ponnambally Samuel situated in Vayathur Amsom desom, in possession of 50 pkts. (each contain 100 m.l) arrack brought from Karnataka, in contravention of Kerala Abkari Act and Rules and thereby committed the said offence. On the basis of the above allegation Crime No.4/2007 was registered in the Srikandapuram Excise Range for the said offence. Based upon which investigation was undertaken and finally a report was filed before the Judicial First Class Magistrate Court, Mattannur and subsequently, the case was committed to the Sessions Court as per the order dated 1.3.2008 of the committal court, in CP No.165/2007, wherein the case is received as Sessions case No.434/2008 which was subsequently Crl.A.No.1969 of 2010 2 made over to the present trial court for disposal. On the appearance of the accused/appellant, after hearing him and the prosecution, a formal charge was framed for the offence u/s.8(1) read with Section 8(2) of Kerala Abkari Act and when the said charge was read over and explained to the accused/appellant, he denied the same. Thereafter the prosecution has proceeded to examine Pws.1 to 5 and produced Ext.P1 to P11 documents. No evidence is adduced from the side of the defence. The trial court finally found that the appellant/accused was found in possession of 50 packets arrack as alleged by the prosecution and thereby committed the offoence u/s.8(1) r/w 8(2) of the Abkari Act and accordingly, he is convicted thereunder. On such conviction, the trial court sentenced the appellant/accused to undergo rigorous imprisonment for 3 years and also to pay a fine Rs.1,00,000/- and the default sentence is fixed as one year simple imprisonment. Set off was allowed u/s. 428 of Cr.P.C. It is the above finding and order of conviction and sentence challenged in this appeal. 3. As the accused is undergoing imprisonment in pursuance of the impugned judgment, he preferred the above appeal from the jail and when the same was received by this Court, as ordered by this Court, the registry has appointed Crl.A.No.1969 of 2010 3 Smt.Mini Elizabeth George, from the panel of State Brief to prosecute the appeal for and on behalf of the appellant. Thus, I have heard Smt.Mini Elizabath George, counsel for the appellant and Sri.P.A.Salim, learned Public Prosecutor. 4. The crux of the prosecution case is that accused found in possession of 50 pkts. Each contain 100 m.l arrack and accordingly, he is liable to be convicted and punished u/s.8(1), 8 (2) of the Abkari Act. As I indicated earlier, in order to substantiate the above prosecution allegation, the prosecution has adduced oral evidence of Pws.1 to 5 and the documentary evidence Ext.P1 to P11. Among the prosecution witnesses PW1 is the officer, who detected the offence. When PW1 was examined, he had deposed in terms of the prosecution. According to PW1, he was the then Asst. Excise Inspector attached to Srikandapuram Excise Range. According to PW1 at about 5.30 on 12.2.2007, the appellant/accused was found at the road side in front of the house Ponnambally Samuel holding a black plastic bag and seen the excise party, the accused got frightened and due to suspicion, PW1 and party intercepted the accused and checked the plastic bag which was found in his possession in the presence of the independent witness and on further examination from the bag, the plastic packets were Crl.A.No.1969 of 2010 4 finding therein and the liquid inside the plastic were identified as arrack. PW1 further deposed with respect to the further steps adopted by him towards the seizure of the contraband article and the arrest of the accused. Thus, the prosecution has got marked Ext.P1 arrest memo and P2 seizure mahazar through PW1. Beside the above, Ext.P3 crime and occurrence report, Ext.P5 arrest intimation were also proved through PW1. The subsequent investigation was undertaken by PW5, who finally laid the charge. Prosecution has also examined PW2 and 3 to prove the incident, but they partly turned hostile to the prosecution. PW4 is the Village Officer, who prepared sketch of the scene of occurrence, which was marked as Ext.P10. It is the above materials and evidence relied on by the court below for its finding and convicting the accused/appellant. 5. The learned counsel for the appellant on the strength of the decision of this court in Subramaniyam v. State of Kerala reported in (2010(2) KLT 470) submitted that the conviction and sentence imposed against the appellant is unsustainable and liable to be set aside, since in the present case, the alleged detection of the crime and seizure was effected by PW1, who was an Asst. Excise Inspector at the relevant time, who is not competent and not authorized for the same. Crl.A.No.1969 of 2010 5 6. In the light of the above argument advanced by the learned counsel for the appellant and in view of the facts and circumstances involved in this case and the evidence of the prosecution, the question to be considered is whether the trial court is justified in its finding and convicting the accused on the basis of the arrest and seizure of the contraband article made by PW1, who was the then Asst. Excise Inspector. The learned Public Prosecutor for the State has no dispute regarding the correctness of the decision of this court reported in (2010 (2) KLT 470) Subramaniyam v. State of Kerala. There is also no dispute that PW1, at the relevant time was working as Asst. Excise Inspector, who detected the crime and seized the contraband article and arrested the accused. In the decision cited supra has held that PW1 therein, who was working as Asst. Excise Inspector, was not a competent and authorized officer as contemplated by the provisions of the Abkari Act, especially Section 4(d) and Section 70 of the Act and therefore, the seizure and arrest made by PW1 was illegal, incorrect and improper and without jurisdiction and authority. In the light of the facts and circumstances involved in this case, the above judgment of this Court and the dictum laid down therein are squarely applicable in the present case, since in the present Crl.A.No.1969 of 2010 6 case also PW1 was not an authorized officer at the relevant time, therefore the conviction and sentence imposed against the appellant/accused is liable to be set aside as the same is not legally and factually justifiable. In the result, this appeal is allowed setting aside the judgment dated 21.6.2010 SC No.433/2008 of the court of Addl. Sessions Judege, Adhoc-I, Thalassery acquitting the appellant/accused of all the charges levelled against him and, accordingly, he is set at liberty. As this court has set aside the conviction and sentence imposed against the appellant/accused and he is acquitted of all the charges levelled against him, he is entitled to get released from jail forthwith if he is not required in any other case. The registry is directed to forward the gist of this judgment to the Superintendent, Central Prison, Kannur forthwith for further action in the matter. V.K.MOHANAN, JUDGE pm