KELAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner is the second accused in S.C. No. 342/2001 before the 2nd Assistant Sessions Judge, Kozhikode Division. He was prosecuted along with another accused for offences punishable under Sections 55(a) and 55(g) of the Abkari Act. The prosecution case was that on 21.12.1999 at about 12 noon, in the court -yard of the 1st accused's house, at about 600 meters south -west of Akampuzha junction, at Thazhokkod -Kariapuzha road, at Koodaranhi amsom of Kozhikode taluk, the accused were found manufacturing illicit liquor using wash and arrack and the police party of Thiruvambadi recovered the implements from the accused, whereby the accused committed the offences charges against them. The prosecution examined PWs 1 to 10 and marked Exts. P1 to P9 as also MOs 1 to 6. The defence did not adduce any evidence. After trial, the Assistant Sessions Judge convicted the accused and sentenced them to undergo simple imprisonment for one year each for the offences and to pay fine of Rs. 1 lakh for each offence, in default of which to undergo simple imprisonment for another two months. The petitioner challenged the same before the Sessions Court, Kozhikode in Cr. A. No. 373/2002. The Sessions Court confirmed the conviction and sentence imposed by the Assistant Sessions Judge. The petitioner is challenging the judgments of the courts below. The petitioner raises two contentions. The first is that under Section 31 of the Abkari Act, a police officer can make a search without a search warrant only after recording his reasons and grounds for his belief that the delay occasioned by obtaining a search warrant will prevent the execution of the search itself. In this case, admittedly, no search memo was prepared regarding the grounds for the belief of the police officer who conducted the search as to why the obtaining of a search warrant would prevent the execution of the search. Therefore, in view of the decision of the Supreme Court in Suraj v. Excise Inspector, 2001 (1) KLT 169 (SC), the search itself is vitiated and therefore the prosecution also has to be held to be without jurisdiction. The second contention is that the petitioner had nothing to do with the premises where the alleged offences were being committed and even going by the evidence of the Police Officer, who conducted the search, the petitioner was only standing at the scene of occurrence and he had nothing in his hand. That means the prosecution has proved only that he was an on -looker and nothing has been brought out on record to prove that the petitioner was really involved in the commission of the crime. In support of the contention, the petitioner relies on the decision of the Supreme Court in Nellikunnel Jose v. State of Kerala, : (2001) 10 SCC 198, wherein the Supreme Court held that the mere presence of the accused near a lorry transporting illicit liquor will not lead to the ultimate conclusion that that person committed an offence under Section 55(a) of the Abkari Act. The petitioner therefore submits that there is no evidence on record to prove that the petitioner was actually involved in the crime and therefore the petitioner could not have been validly convicted for the offences alleged.

(2.) ON the other hand, the learned Public Prosecutor would contend that a mere irregularity in the search under Section 31 will not render the prosecution invalid, which has been held so by this Court in Joy v. State of Kerala,, 2010 (3) KLT 20. Regarding the second contention, the learned Public Prosecutor would contend that the Police Officer, who conducted the search, gave evidence as PW1 and he gave evidence to the fact that both the accused persons were found distilling illicit liquor. Therefore, there is evidence to show that the petitioner was also involved in the crime and therefore there is no merit in the second contention of the petitioner also.

(3.) SECTION 31 of the Abkari Act reads thus: