Chellappan vs State of Kerala

V.K. Mohanan, J.—The challenge in this appeal is against the judgment dated 9/6/2005 in S.C. No. 180 of 2002 of the court of the Additional District and Sessions Judge (Adhoc) Fast Track-I, Pathanamthitta, at the instance of the sole accused therein as he is convicted and sentenced for the offence u/s 8(1) & (2) of the Abkari Act. The prosecution case is that on 18/7/1998 at 6.15 p.m., when the Assistant Excise Range Inspector and party of Konni Excise Range Office had searched house No. VII/371 by name Kulakuttiyil veedu in Malayalapuzha Panchayat in the residential occupation of the accused as head of the family, they had found and seized 3 litres of arrack kept concealed in a cannas of 5 litre capacity, beneath the kitchen slab of that house. Thus, according to the prosecution, the accused has committed the offence punishable u/s 8(1) & (2) of the Abkari Act. During the trial of the case a formal charge was framed against the accused for the offence punishable u/s 8(1) & (2) of the Abkari Act which when read over and explained to the accused, he denied the same and pleaded not guilty and consequently PWs. 1 to 5 were examined and Exts. P1 to P9 documents were marked from the side of the prosecution. MO. 1 material object is also identified and marked. The trial court finally found that the prosecution has succeeded in establishing its case against the accused of being found keeping conscious possession of 3 litre of illicit arrack as alleged and accordingly he is found guilty of the offence punishable u/s 8(1) & (2) of the Abkari Act and accordingly he is convicted thereunder. On such conviction the accused/appellant is sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 1,00,000/- in default to undergo simple imprisonment for two years. Set off is allowed. It is the above finding and order of conviction and sentence that are challenged in this appeal.

Heard Sri. Muhammed Haneef, the learned counsel for the appellant and Sri. N. Suresh, the learned Public Prosecutor for the State. Having regard to the facts and circumstances involved in the case and especially when there is no dispute that in the present case the search, seizure and arrest of the accused are made by PW. 1, who was then working as the Assistant Excise Inspector attached to Konny Excise Range and the said search, seizure and arrest of the accused was made on 18/7/1998, on which date the Assistant Excise Inspectors of Kerala Excise Department were not authorised or empowered to exercise the powers under Sections 31, 32, 34, 35, 38, 39 & 53 of the Kerala Abkari Act. The position is now well settled in the decision in Parathi Sasidharan Vs. State of Kerala, in which this Court has held that arrest and seizure was made by an Assistant Excise Inspector is not valid in view of S.R.O. No. 361 of 2009 dated 8/5/2009. It is beyond dispute that the powers under Sections 31, 32, 34, 35, 38, 39 & 53 of the Kerala Abkari Act conferred upon the Assistant Excise Inspectors in the Kerala Excise Department only with effect from 8/5/2009 as per notification i.e., S.R.O. No. 361 of 2009. Before such notification the Assistant Excise Inspectors have no such powers. In the present case the search, seizure and arrest were effected by PW. 1, who was then working as Assistant Excise Inspector on 18/7/1998, on which date no such powers were conferred. Therefore, on that ground alone this Crl. Appeal is to be allowed.

In the result, this appeal is allowed setting aside the judgment dated 9/6/2005 in S.C. No. 180 of 2002 of the court of the Additional District and Sessions Judge (Ad-hoc) Fast Track Court-I, Pathanamthitta and the appellant/accused is acquitted of all the charges leveled against him and the bail bond, if any, executed by the appellant stands cancelled and he is set at liberty.