Asokan v. State of Kerala

**CRL.A NO. 437 OF 2008** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944 CRL.A NO. 437 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 371/2005 OF ADDITIONAL DISTRICT COURT (ADHOC), KOZHIKODE** ## **APPELLANT/S:** ASOKAN THALAKKOT MEETHAL HOUSE, BALUSSERY AMSOM,, KUNHIKAVU DESOM, KOZHIKODE DISTRICT. BY ADV SRI.SANTHARAM.P ## **RESPONDENT/S:** STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ## **OTHER PRESENT:** SRI.SANAL.P.RAJ, PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **CRL.A NO. 437 OF 2008** **2** ## **P.V.KUNHIKRISHNAN, J** **-------------------------------------------Crl.Appeal No.437 of 2008 -------------------------------------Dated this the 15[th] day of July, 2022** ## **JUDGMENT** The above appeal is filed against the conviction and sentence imposed on the appellant as per judgment dated 12.12.2007 in S.C. No. 371/2005 on the file of the Addl. District & Sessions Judge, Fast Track (Adhoc) Kozhikode. The above case is chargesheeted against the appellant alleging offences punishable under Sec.8 (1) and (2) of the Abkari Act. 2. The prosecution case is that on 7.1.2003, CW1, the Preventive Officer of Perambra Excise Circle office and his party were conducting patrolling through Balussery amsom, Kanikavu desom, Ulliyeri 19 Canal junction road at about 5.30 PM, when they reached in front of the house of Padinharekkandy Abu, **CRL.A NO. 437 OF 2008** **3** they found the accused coming with a plastic can in his right hand from their opposite direction. After seeing the Excise party, he tried to flee away. Then they intercepted him and verified the kannas which found containing about 1½ litres of arrack. There was witness to the detection. The accused was arrested and the contraband was seized after taking sample. Then the accused, contraband and documents were produced before the Perambra Excise Circle office from where it was produced before the Perambra Excise Circle office. After registering the case and also conducting investigation, the Excise Inspector Balussery has laid charge before the Judicial First Class Magistrate Court-II, Perambra. 3. To substantiate the case, the prosecution examined, PW1 to PW6. Exts.P1 to P7 are the exhibits produced by the prosecution. MO1 is the material object. After going through the evidence and documents, the trial court found that the accused committed the offence under Sec.8(1) and (2) of the **CRL.A NO. 437 OF 2008** **4** Abkari Act. The accused is sentenced to undergo rigorous imprisonment for 1 ½ years and to pay a fine of Rs.1,00,000/(Rupees One Lakh only). In default of payment of fine, the accused is directed to undergo rigorous imprisonment for six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. The learned counsel for the appellant submitted that the investigation in this case is conducted by an Asst. Excise Inspector and he is not an authorised officer and for that reason itself, the entire prosecution is vitiated. The counsel relied the judgment of this Court in _**Parathi Sasidharan v. State of Kerala**_ [2012 KHC 340]. In the above judgment, it is stated that till 8.5.2009, the Asst. Excise Inspector is not authorised. In this case, the seizure was on 7.1.2003. The learned Public Prosecutor submitted that there is oral and **CRL.A NO. 437 OF 2008** **5** documentary evidence to prove the case. 6. This Court considered the contentions of the appellant and the respondent. The Asst. Excise Inspector is not an authorised officer till 8.5.2009 on which date SRO 361/2009 dated 8.5.2009 came into force. If that is the case, the entire trial is vitiated because PW4 is the Asst. Excise Inspector, who conducted part of the investigation in this case. The above point is considered by this Court in several judgments. The Assistant Excise Inspector is not authorised to conduct search and seizure as per the Abkari Act till 8.5.2009. Admittedly in this case the seizure was on 7.1.2003. In _**Bhaskaran** v._ _**State of Kerala**_ [2018 (4) KLT 894] and in _**Subrahmaniyan** v._ _**State of Kerala**_ [2010 (2) KLT 470] and in _**Sasidharan** v._ _**State of Kerala**_ [2012 (2) KLT 392] this Court considered this point. The relevant portion of the judgment in _**Bhaskaran’s**_ case (supra) is extracted hereunder : **CRL.A NO. 437 OF 2008** **6** “12. Here in this case, PW1 was only an Assistant Excise Inspector. It was argued by the learned counsel for the appellant that the arrest of the accused, the seizure of the articles and sampling of the articles done by the Assistant Excise Inspector were without jurisdiction. Since the illegality annexed to the main parts i.e., the arrest, seizure and sampling, that will go to the root of the matter and hence the cognizance taken and the trial conducted based on such a report are vitiated. Though as per SRO No.234/1967, Preventive Officers were invested with the powers to be exercised under Sections 31, 32, 35, 38, 39, 53 and 59, since the preventive officers are officers specifically named as per the aforesaid notification, the arrest of the accused and seizure of the articles and the production of the accused and property before the Magistrate by the Assistant Excise Inspector, who is not a named or notified officer, are without jurisdiction as has been held by this Court in _**Subrahmaniyan v. State of Kerala**_ (2010(2)KLT 470). 13. It has also come out in evidence that the notification-SRO.361/2009 dated 08.05.2009, as per which the Assistant Excise Inspector of the Range were empowered to exercise all the powers and to perform all the duties of the Excise Inspectors subject to the control of the Excise Inspector. So, as per the latest notification of 2009, all officers of the Excise Department not below the rank of Assistant Excise Inspector were empowered to perform the acts and duties mentioned in Sections 40 to 53 (both inclusive) of the Act. They were also empowered to exercise the duties under Sections 31, 32, 34, 35, 38, 39 and 53 of the Act and to exercise all the powers conferred and to perform all the duties assigned on Abkari Officers under the sections aforesaid. 14. In this case, the offence was detected on 16.4.2002 i.e., before the notification S.R.O.361/2009 dated 08.5.2009. So, the above said notification will not rescue the prosecution in this case since the offence was detected on 16.4.2002. So, the only basis on the notification S.R.O.234/1967, the Assistant Excise Inspector was not mentioned as authorised person to detect the offence. Only the offences detected by the Assistant Excise Inspector after 8.5.2009 is to be well within his power. So only the sole ground that the **CRL.A NO. 437 OF 2008** **7** Assistant Excise Inspector was not empowered under the Act as has held in the ruling in _**Subrahmaniyan's**_ case (supra), the appellant herein is entitled to get acquittal as prayed or. Accordingly, this appeal is allowed.” ## 7. Similarly in _**Sasidharan’s**_ case (supra) also, the same point is considered. The relevant portion is extracted hereunder : “17. But it is argued by the learned counsel for the appellant that as per Section 70 of the Act, all notification and orders conferring powers, imposing duties and making appointments under the act may respectively refer to the persons concerned specially by name or in virtue of their office or to classes of officials generally by the official titles. It is argued since as per the notification in S.R.O.No.234/1967 it was specifically mentioned that the acts and duties mentioned in Sections 40 to 53 of the Act are to be performed by the officer not below the rank of Excise Inspector and since PW2 was only an Assistant Excise Inspector, the arrest of the accused, seizure of the articles and sampling of the articles done by him were without jurisdiction. Since the illegality annexed to the main parts i.e., the arrest, seizure and sampling, that will got to the root of the matter and hence cognizance taken and the trial conducted based on such a report are vitiated. Though as per S.R.O.No.234/1967, Preventive Officers were invested with the powers to be exercised under Sections 31, 32, 35, 38, 39, 53 and 59, since the preventive officers are officers specifically named as per the aforesaid notification, the arrest of the accused and seizure of the articles and the production of the accused and property before the Magistrate by the Assistant Excise Inspector who's not a named or notified officer, are without jurisdiction as has been held by this Court in Subrahmaniyan v. State of Kerala 2010(2)KLT 470). 18. Smt.Jasmine, the learned Public Prosecutor submits that the contention that even thereafter no **CRL.A NO. 437 OF 2008** **8** notification was issued authorising and empowering the Assistant Excise Inspector to perform the duties under the Act cannot be countenanced in view of the subsequent notification S.R.O.No.361/2009 dated 8.5.2009 as per which the Assistant Excise Inspector of the Range were empowered to exercise all the powers and to perform all the duties of the Excise Inspectors subject to the control of the Excise Inspector. It was further made clear that all officers of the Excise Department not below the rank of Assistant Excise Inspector were empowered to perform the acts and duties mentioned in Sections 40 to 53 (both inclusive) of the Act. They were also empowered to exercise the duties under Sections 31, 32, 34, 35, 38, 39 and 53 of the Act and to exercise all the powers conferred and to perform all the duties assigned on Abkari Officers under the sections aforesaid. But that notification cannot come to the rescue of the prosecution in this case since this notification S.R.O.No.361/2009 came into force only with effect from 8.5.2009 whereas the offence in this case was detected on 19.6.2001. The incident in the case on hand took place long prior to the aforesaid notification. Hence, following the decision in Subrahmaniyan's case, it has to be held that PW2, the Assistant Excise Inspector was not empowered under the Act as it stood then, to perform the duties under the aforestated provisions. Therefore, only on this ground, this Criminal Appeal is allowed. But it is made clear that on and after 8.5.2009, the arrest of the accused, seizure of contraband, sampling, sealing and production of the accused and properties before Court, done by the Assistant Excise Inspector, would be well within his powers.” 8. In the light of the above authoritative judgments of this Court, the trial in this case is vitiated. Therefore, this criminal appeal is allowed. The conviction and sentence imposed on the appellant is set aside. The **CRL.A NO. 437 OF 2008 9** appellant is set at liberty. The bail bonds, if any executed by the appellant stands cancelled. Sd/- **P.V.KUNHIKRISHNAN JUDGE** SKS