IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 CRL.A.No. 1131 of 2009() ------------------------ SC.326/2007 OF ADDL. SESSIONS COURT, ADHOC-II, THODUPUZHA. .................... APPELLANT(S): ACCUSED ------------------------------------- JOHNSON, C.NO.3732, CENTRAL PRISON, TRIVANDRUM. BY ADV. ADV.P.LEAN JOSE (STATE BRIEF) RESPONDENT(S): COMPLAINANT ---------------------------------------------- STATE OF KERALA, REPRESENTED BY A PUBLIC PROSECUTOR. PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J -------------------------- Crl.Appeal.No.1131 OF 2009 ------------------------------------------ Dated 6th April, 2011 J U D G M E N T This appeal arises from the conviction and sentence passed against appellant under section 8(1) read with section 8 (2) of Abkari Act to undergo rigorous imprisonment for four years and to pay a fine of Rs.1,00,000/- in default of payment of fine to undergo simple imprisonment for three months. 2. According to prosecution on 10.10.2004 at about 3.20 pm accused was carrying one liter of arrack in a bottle having capacity of 11/2 liters on the path way going to river situated near the house of one Mohanan. 3. To prove prosecution case prosecution examined PW1 to PW3 and marked Ext.P1 to P6 and MO1. Trial court believed the evidence of PW1 who is the detecting officer and found guilty of offence under section 8(2) of Abkari Act. The said conviction and sentence are challenged in this appeal. 4. Appellant filed the appeal from the jail. He was undefended and hence Adv. Mr.P.Lean Jose was appointed as State Brief. Appellant is not stated to be involved in any offence but he is falsely implicated and this case is an off shoot of specific Crl.A. No.1131/09 2 motive which he stated while questioned under section 313 Cr.P.C. 5. Heard both sides. Perused the records. PW1 is the only witness to speak about occurrence. He is Assistant Excise Inspector, who arrested the accused and seized the contraband article from him. He prepared Ext.P2 mahazar, registered the case, and also took sample and sent for analysis. He gave evidence more or less consistent with the prosecution case. 6. PW3 an attester to Mahazar. He denied the prosecution case and was treated as hostile. PW3 is the Assistant Excise Inspector. The seizure was effected on 10.10.2004. As per notification issued under section 4 of Abkari Act, SRO 234/67 as on 10.10.2004 Assistant Excise Inspector is not an Abkari Officer for purpose of sections 31, 32 etc. which include arrest, seizure etc. Learned public Prosecutor fairly pointed out that it is only in the year 2007 that an amendment was brought by which, Assistant Excise Inspector was also notified as the Abkari Officer. Till then even an officer who is of lesser in rank viz. Preventive Officer was a notified Abkari Officer. 7. In the above circumstances, I find the detection of offence, seizure, arrest etc. are done by an officer who was not Crl.A. No.1131/09 3 an Abkari officer as on date of occurrence and hence cannot be convicted for offence under section 8(2) of Abkari Act (vide also decision 2010(2)KLT 470 Subramanian Vs. State of Kerala.) Hence, conviction and sentence passed against appellant are unsustainable. He has, however, suffered punishment for more than two years now. He was sentenced to undergo rigorous imprisonment for four years, even though article involved is only 11/2 liter of arrack. The conviction and sentence are liable to be set aside and I do so. In the result, the following order is passed: (i) The conviction and sentence passed against appellant under section 8(2) of Abkari Act are set aside. (ii) The appellant is found not guilty and he is acquitted of offence under section 8(2) of Abkari Act. (iii) Appellant is set at liberty forthwith. (iv) Appellant shall be released from prison forthwith, if his detention is not wanted in any other case. Registry shall issue release memo to that effect forthwith. The appeal is allowed. Sd/- K. HEMA, JUDGE. Sou. // True copy // P.A To Judge.