Sahadevan @Maniyan vs State Of Kerala

The appellant was convicted and sentenced by the court below under Section 55(a) of the Abkari Act.

The prosecution allegation is that on 24.06.1999 at about 8 p.m., the appellant was found in possession of 2 litres of arrack, in contravention of the provisions of the Abkari Act.

Since there is no representation for the appellant, this Court has appointed Adv.Muralee Krishnan.R (Malakkara), as Amicus Curiae to argue the case for the appellant.

Heard the learned Amicus Curiae and the learned Senior Public Prosecutor.

The learned Amicus Curiae has argued that since the detection, seizure of the contraband, arrest of the appellant and registration of the crime were done by PW2, who was only an Assistant Excise Inspector, the appellant is entitled to be acquitted.

As per SRO No.234/1967, the Assistant Excise Inspector was not a competent and authorised officer as an Abkari officer during the relevant period.

In Subrahmaniyan v. State of Kerala [2010 (2) KHC 552], the court held that the Assistant Excise Inspector was not a competent and authorised Officer under the Abkari Act, especially under Sections 4(d) and 70 of the Abkari Act as per S.R.O. No.234/1967 and hence, the seizure and arrest made by the Assistant Excise Inspector were without authorisation and jurisdiction.

The court in Sasidharan v. State of Kerala [2012 (2) KLT 392] followed the decision in Subrahmaniyan (supra) and held that the Assistant Excise Inspectors were not empowered under the Abkari Act prior to 8.5.2009 to perform the duties under Sections 31, 32, 34, 35 and 38 to 53 of the Abkari Act.

In this case, PW2 was only an Assistant Excise Inspector during the relevant period. He detected the offence, seized the contraband, arrested the appellant and registered the crime. Since PW2 was only an Assistant Excise Inspector, he was not an Abkari Officer. Therefore, the seizure of the contraband, arrest of the appellant and the registration of the crime by PW2 were without authorisation and jurisdiction and consequently, the conviction and sentence passed by the court below on the basis of the said seizure and arrest cannot be sustained.

In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted. The bail bond of the appellant stands discharged.