Kerala High Court Asks State To Revisit The Procedure For Search & Seizure In Abkari Cases

"This Court while hearing criminal appeals against conviction and sentence imposed by the trial court, it could be seen that 50% of the cases are with same stereotype allegations."

In most cases, the accused were said to be caught by the Excise Officers while proceeding in a jeep and finding them approaching from the opposite side carrying a can containing the contraband. Upon seeing the officers, the persons are said to have attempted to flee but were caught by the officers. This has been a regular pattern in several Abkari cases, the Court noted.

Therefore, it was found that a detailed study or enquiry by a competent person appointed by the State was necessary on the manner in which arrest, seizure, investigation, etc in abkari cases have been made at least for the last 5 years and whether there is any further change in the mode of investigation is necessary.

The Court recorded that this was imperative since the sentence that can be imposed in abkari cases is severe and that Section 41A of the Abkari Act contemplates serious restrictions for granting bail to an accused.

"Once an allegation is raised against the accused in an Abkari case, the jurisdiction of the Court to release the accused is very limited. This Court and the Sessions Court invoke the powers under Section 438 Cr.P.C only rarely in Abkari cases. Of course, these restrictions were imposed because of the serious nature of the offence and to eradicate the illicit manufacture of liquor. But in such situation, there cannot be any false implications against innocent persons due to private disputes."

The Judge found that if an abkari officer has personal scores to settle with a person, he can easily implicate them as an accused if this system was allowed since unlike in the cases of narcotic drugs, a search of the accused is not necessary in the presence of a gazetted officer.

However, it was emphasised that as per Section 36 of the Abkari Act, a search should be conducted as per CrPC, provided that the persons called upon to attend and witness such searches shall include at least two persons neither of whom is an Abkari, Police or Village Officer.

The Court said that if a study is conducted on the disposed Abkari matters, it would come out that in a majority of cases, the independent witnesses turned hostile. When the independent witnesses turn hostile in almost all cases, this is a serious concern that is to be looked into by the Government and legislature.

Therefore, the manner in which the search, seizure and investigation of the Abkari cases is conducted in the State was to be revisited by the Government/Legislature by conducting an appropriate study or enquiry and based on the same, if necessary, should make appropriate amendment in the Abkari Act.

Although it noted that the Court cannot direct the Legislature to draft a legislation, it raised serious concerns to be looked into by the Government and Legislature.

Meanwhile, since it was clear that Article 21 was infringed in these cases, Justice Kunhikrishnan found that the State is bound to pay compensation to the petitioners and that the same should be recovered from the persons responsible for the illegal confinement, adding that the tax-paying citizens should not be burdened with this liability.

Therefore, the State was directed to pay an amount of Rs.2,50,000/- each to the petitioners and the petitioners were granted the liberty to approach the competent civil court if they were entitled to more compensation in the peculiar facts and circumstances of the cases.

As such, while allowing the petitions, a copy of this judgment was directed to be forwarded to the Chief Secretary to Government for a detailed study/enquiry and an action taken report should be submitted before this Court by the State within six months.

Also Read: 'Jail Is Jail': Kerala High Court Asks State To Pay ₹2.5 Lakhs To Two Persons Falsely Implicated & Detained For Over 50 Days

Case Title: Anil Kumar A.B. v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 163

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