T.R. Binoy 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 01.09.2004 at about 5.45 p.m., the appellant was found in possession of 45 packets of Karnataka made arrack,

each packet having a capacity of 100 ml each, in contravention of the provisions of the Abkari Act. The total quantity of the contraband possessed by

the appellant was 4.5 litres of arrack.

Heard.

The learned Counsel for the appellant has argued that since PW1, who detected the offence, effected the seizure, arrested the appellant and

registered the crime, was only an Assistant Excise Inspector, who was not an abkari officer, the appellant is entitled to be acquitted.

As per SRO No.234/1967, the Assistant Excise Inspector was not 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, PW1 was only an Assistant Excise Inspector. PW1 detected the offence, seized the contraband, arrested the appellant and registered

the crime. Since PW1 was only an Assistant Excise Inspector, he was not an Abkari Officer during the relevant period. Hence, he was not competent

to effect seizure, arrest the appellant and register the crime. In the said circumstances, the seizure of the contraband, the arrest of the appellant and

the registration of the crime were done by PW1 without jurisdiction and authorisation. In the said circumstances, the conviction and sentence passed

by the court below on the basis of the said arrest, seizure and the registration of the crime 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.