Babu s/o Bhaskara Pillai v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942** ## **CRL.A.No.1154 OF 2006** **AGAINST THE JUDGMENT DATED 16.5.2006 IN S.C.NO.160 OF 2004 ON THE FILE OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE (ADHOC)-II, THODUPUZHA.** ## **APPELLANT/ACCUSED:** **BABU S/O.BHASKARA PILLAI KANIYAMPARAMBIL HOUSE, MEPPARA KARA,, AYYAPPANCOIL VILLAGE.** **BY ADVS. SRI.C.K.VIDYASAGAR SHRI.P.CHANDY JOSEPH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY EXCISE INSPECTOR, KATTAPPANA RANGE,, REP. BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA.** ## **OTHER PRESENT:** **R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL NO.1154 OF 2006 2** ## **JUDGMENT** **Dated this the 11th day of November 2020** … **The appellant is the accused in Sessions Case No.160 of 2004 on the file of the Additional Sessions Judge (Adhoc)-II, Thodupuzha.** **2, The above case is charge sheeted by the Excise Inspector, Kattappana alleging offences punishable under Section 55(a) of the Abkari Act.** **3. The prosecution case is that, on 24.8.2001 at 4.30 p.m. while PW1 was on patrol duty he got information that illicit liquor was being sold in the provision shop of one Kaniyamparambil Bhaskara Pillai at Meppara kara. After preparing search memorandum and sending it to court PW1 reached the shop of Bhaskara Pillai. The accused was then found running from the shop carrying a plastic bag. He was chased and apprehended. The plastic bag held by him was obtained and examined. The plastic bag contained two 750 ml. Bottles. The bottles were not factory sealed. The bottles were opened and the liquid contained in it was examined. It was illicit liquor. The accused** **CRL.APPEAL NO.1154 OF 2006 3** **was arrested. Hence, it is alleged that the accused committed the said offence.** **4. To substantiate the case, the prosecution examined PW1 to PW4. Exhibits P1 to P7 are the documents marked on the side of the prosecution. One witness was examined on the side of the defence as DW1. MO1 and MO2 are the material objects.** **5. After going through the evidence and documents, the trial court found that the accused committed the offence under Section 55(a)&(i) of the Abkari Act. He is sentence to undergo rigorous imprisonment for one year and to pay fine of Rs.1,00,000/- under Section 55(i) of the Abkari Act. In default of payment of fine, he is directed to undergo rigorous imprisonment for three months. No separate sentence was imposed under Section 55(a) of the Abkari Act.** **6. Aggrieved by the above conviction and sentence, this Criminal Appeal is filed.** **7. Heard the learned counsel for the appellant and the learned public prosecutor.** **8. One single point is raised by the learned** **CRL.APPEAL NO.1154 OF 2006 4** **counsel for the appellant in this case. He contended that the case is detected by a preventive officer and he himself registered the case. The counsel submitted that, the preventive officer has no jurisdiction to register the case. Of course, he can detect the offence and report the same to the officer concerned. The counsel submitted that, for that simple reason, the accused is entitled the benefit of doubt.** **9. The learned Public Prosecutor submitted that there is oral and documentary evidence to prove the offence against the appellant. The public prosecutor submitted that, this Court may not acquit the accused on technical grounds.** **10. The point for considerati0n in this case is whether the accused committed the offence under Section 55(a)(i) of the Abkari Act ?** **11. Admittedly, the case was detected by PW1, the preventive officer. After seizure of the contraband article, he reached his office. Thereafter he registered the case. This point is considered by this Court in Kavumpurath Rajappan v. State of Kerala [Crl.Appeal No.417 of 2005 dated 14.10.2020]. The** **CRL.APPEAL NO.1154 OF 2006 5** ## **relevant paragraph of the said judgment is extracted hereunder:** **“10. Whether in such situation a preventive officer can register the case, is a question to be decided in this case. This point is considered by this Court in detail in the judgment dated 21.12.2015 in Crl.A No.300/2006. The relevant portion of the judgment is extracted hereunder.** **“9. After having heard learned counsel for the appellant and the learned Public Prosecutor and having perused the records and provisions of the Act, there seems to be some force in the submission of the learned counsel for the appellant. To understand the position as contended by the learned counsel for the appellant, reference to the provisions is required. First among them being the definition of 'Abkari Officer' as contained in Section 3(2) of the Abkari Act which reads as follows:** - _**“3(2) Abkari Officer:- “Abkari Officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5.”**_ **Section 3(6) defines 'Abkari Inspector' as follows:** _**“3(6) Abkari Inspector.“Abkari Inspector” means an officer appointed under Section 4, clause (d).”**_ **Section 4 reads as follows:** _**“4. The Government may, by notification in**_ **CRL.APPEAL NO.1154 OF 2006 6** _**the Gazette:- (a) The Government may appoint an officer to control the administration of the Abkari Department:Appoint an officer, who shall be styled the commissioner of Excise and who shall, subject to the general control of the Government have Control of the administration of the Abkari Department and of the collection of the Abkari Revenue or of both; (b) May appoint any person other than the Commissioner to perform all or any of his duties:- Appoint any person other than the Commissioner of Excise to exercise all or any of the powers and to perform all or any of the duties of the Commissioner of Excise, subject to the control of the Government.**_ _**(c) May withdraw Abkari powers from Commissioner or other officer appointed under clause (a) or clause (b):- Withdraw from the Commissioner or other officer appointed under clause (a) or clause (b) any or all of his powers in respect of the Abkari Revenue;**_ _**(d) May appoint officer to take action under Sections 40 to 53:- Appoint officers to perform the acts and duties mentioned in Sections 40 to 53 inclusive of this Act;**_ _**(e) And subordinate officers:- Appoint subordinate officers of such classes and with such designations, powers and duties**_ **CRL.APPEAL NO.1154 OF 2006 7** _**under this Act as the Government may think fit.**_ _**(f) May appoint any officer of Government or persons to act as above:- Order that all or any of the powers and duties assigned to any officer under clauses (d) and (e) of this section shall be exercised and performed by any Officer of Government or any person.**_ - _**(g) Delegate to any Abkari Officer all or any of their powers under this Act.”**_ **It may be noticed at once that Abkari Inspector means an officer appointed under Section 4 clause (d). It means those officers mentioned in Sections 40 to 53 inclusive of the Act. So that Abkari officers empowered to act under Sections 40 to 53 alone can qualify as Abkari Inspector. Section 5 reads as follows:** - _**“5. The Government may, from time to time, make rules:- (1) Prescribing the powers and duties under this Act to be exercised and performed by Abkari Officers of the several CRL.A.No.417 OF 2005(C) 6 classes; and**_ - _**(2) regulating the delegation by the Government or by the Commissioner of Excise of any powers conferred by this Act or exercised in respect of Abkari Revenue under any law for the time being in force.”**_ **The notification issued in pursuance to the above provision, S.R.O.234/1967 which was in** **CRL.APPEAL NO.1154 OF 2006 8** **force as on the date of incident in this case contained entry No.12 which has already been quoted. One may look into entry No.8 in the above notification which reads as follows:** **8. All officers of the Excise Department not below the rank of Excise Inspectors to perform the acts and duties mentioned in Sections 40 to 53 inclusive of the Act** **Within the areas for which they are appointed.** **Therefore, the distinction between entries 8 and 12 is conspicuous. Entry No.8 in the notification says that all officers of the Excise Department not below the rank of Excise Inspectors can perform the acts and duties mentioned in Sections 40 to 53 of the Act. Entry No.12 says that Preventive Officer can only exercise powers for the purposes of Sections 31,32, 34, 35, 38, 39, 53 and 59. Going by the scheme of the Act, Preventive Officer can take such steps so as to prevent the commission of crime, even arrest the accused without warrant. Their power ceases when they produce the articles and the accused before the Excise Inspector and thereafter they cannot proceed to exercise powers under Sections 40 to 53 of the Act.”** **11. The above judgment squarely cover the point raised by the appellant. Section 40 of the Abkari Act says about the procedure on arrest and seizure. A Preventive Officer is authorized as per the Abkari Act to arrest and seize contraband articles. But there is no authorization to the Preventive Officer to do the activities prescribed under Section 40 of the Abkari Act.** **CRL.APPEAL NO.1154 OF 2006 9** **The Preventive Officer could not assume charge simply because the excise officer is not present in the office. Without authorization he cannot register a case. If an unauthorized person register a case, it will go to the route of the case. Hence, I think the appellant in this case is entitled to the benefit of doubt.”** **In the light of the above judgment, I think, the entire prosecution is vitiated.** **Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 16.5.2006 in S.C.No.160 of 2004 on the file of the Additional Sessions Judge (Adhoc)-II, Thodupuzha are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled.** ## **Sd/-** **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**