Baby @ Joseph v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 1ST DAY OF MARCH 2012/11TH PHALGUNA 1933** ## **CRL.A.No. 370 of 2004 (A)** **-------------------------------------SC.145/2002 of ADDITIONAL SESSIONS COURT (ADHOC I ), THODUPUZHA ...........** ## **APPELLANT(S)/ACCUSED:** **-------------------------------------** **BABY @ JOSEPH, AGED 45 YEARS, S/O. JOSEPH, KUZHIYANPLACKAL HOUSE, PULLUMEDU BHAGAM PULLUMEDU KARA, ANAVILASAM VILLAGE** **BY ADVS.SRI.C.M.TOMY SRI.MATHEW SKARIA** **RESPONDENT(S)/COMPLAINANT:** **-------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY PUBLIC PROSECUTOR SRI.SREEJITH V.S.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **N.K.BALAKRISHNAN, J. --------------------------------Crl.A. No.370 of 2004 -----------------------------Dated this the 1[st] day of March 2012** ## **J U D G M E N T** This appeal is directed against the conviction and sentence passed against the petitioner for offence under Sec.8(1) r/w 8(2) of Abkari Act. Though charge was laid against two accused, the 2[nd] accused was acquitted by the learned Additional Sessions Judge. 2. The case was detected on 1.4.2000 at about 12.30PM. PW1, the Assistant Sub Inspector of Police, on getting reliable information proceeded to to the cardamom estate along with his police party. When they reached the cardamom plantation of one Karipparampil Jose at a place called Pullumedu, they saw two accused persons manufacturing arrack. Out of them, the second accused sped away from the scene but A1 was apprehended. There was a burning stove. Over the stove, there were three pots. Crl.A. No.370 of 2004 -: 2 :- A hose was connected to the one end of the pot and the other end was connected to a bottle to which arrack was falling in drops. The illicit distillation was actually being done at the relevant time. The pots were, one after another, removed. In the bottom most pot there was boiling wash. The upper most pot was meant to keep cold water for the purpose of condensation. Gaseous form of ethyl alcohol which after getting it condensed was to fall into the bottle in drips through the hose pipe. 3. Altogether three samples were taken. Items 2 and 3 contained 180ml each which was taken from the arrack seen in two bottles there. Another sample of 110ml was also taken then and there. The fact that there was another bottle of 650ml containing[2] /3rd portion of liquor and that one end of a hose pipe was fitted to that bottle and that samples were taken from those bottles were mentioned in detail in Ext.P1 mahazar. All the utensils, apparatus, plastic jar, black cannas and kerosene lamp were seized as per Crl.A. No.370 of 2004 -: 3 :- Ext.P1 mahazar. It was stated by PW1 that Ext.P1, the seizure mahazar was signed by the witnesses. There is evidence to show that specimen impression of the seal affixed on the sample bottles was also affixed on Ext.P1 seizure mahazar. That, according to the prosecution, would vouch for the truthfulness of the act of sampling as spoken to by PW1 and mentioned in Ext.P1. 4. Ext.P2 is the FIR registered on the same day based on Ext.P1 seizure mahazar. It is also in evidence that the accused, FIR and seizure mahazar were produced before the learned Magistrate immediately on the next day ie; on 2.4.2000. Therefore, according to the prosecution, seizure of all the articles mentioned above was promptly reported. 5. Altogether 9 items of properties were produced before the court. Item No.9 consists of two sample bottles of 180ml each. Item No.8 was another sealed bottle which contained little quantity of arrack, of which the Crl.A. No.370 of 2004 -: 4 :- measurement taken from the lab was found to be 110ml. All those bottles were found to contain ethyl alcohol, the percentage of which were shown as 57.29, 52.98 and 54.85. Hence, the prosecution contends that the liquor seized from the possession of the accused was illicit. Ext.P3 is the chemical examiner's report, which was proved by PW5, the Chemical Examiner and marked Ext.P3. 6. The main argument that has been advanced by the learned counsel for the appellant is that the case was detected by the Assistant Sub Inspector of Police. He is not an Abkari Officer; only officers of the rank of S.I. of Police and above would come within the category of abkari officer and as such the conviction is unsustainable. It was held by the Division Bench of this Court that the Magistrate cannot take cognizance of an offence under the Act on the basis of a report filed by the Assistant Sub Inspector of Police who is not an abkari officer as defined under the Abkari Act. But the prosecution would point out that the final report under Crl.A. No.370 of 2004 -: 5 :- Sec.173(2) Cr.P.C. was filed by the S.I. of Police and as such cognizance taken on the final report filed by the S.I. who comes within the definition of abkari officer is not at all vitiated. The prosecution would contend that irregularity in investigation is different from lack of power to initiate prosecution. What is bad in law is taking of cognizance which is barred under Sec.50 of the Act. The decisions in **H.N.Rishbud and Inder Singh** v. **State of Delhi** [AIR 1955 SC 196] and **Raj Kumar Karwal** v. **Union of India and others** reported in [(1990) 2 SCC 409] have been relied upon to contend that mere illegality or irregularity in investigation will not vitiate the trial. It is also argued that the defect or illegality in investigation however serious has no direct bearing on the competence or procedure relating to cognizance or trial. But that is different from taking cognizance of the offence on the basis of a report by an officer not authorised under law. Abkari Act mandates that the cognizance can be taken only on the final report filed by Crl.A. No.370 of 2004 -: 6 :- an abkari officer which term includes S.I. of Police and officials above that rank. The cognizance taken would have been barred had the final report been filed by PW1 himself who was only an ASI. But here, the investigation was verified and charge sheet was laid by PW6, the S.I. of Police and as such the cognizance taken or the conviction entered cannot be held to be vitiated, the learned Public Prosecutor submits. 7. The decision in **Subrahmaniyan** v. **State of Kerala** [2010 (2) KLT 470] has been relied upon by the learned counsel for the appellant to contend that the Assistant Excise Inspector cannot be treated as an authorised or competent officer as contemplated under Sec.4(d) and Sec.70 of the Act. Sec.4(d) deals with appointment of officers as mentioned in Secs.40 to 53 of the Act. It is not disputed that only police officers above the rank of S.I. come within the category of 'abkari officers'. Since the seized articles and the accused were produced Crl.A. No.370 of 2004 -: 7 :- before the S.I. of Police, it cannot be said that there was non-compliance of Sec.53 of the Act. It was contended that the investigation was also conducted by PW1 since the case was detected, seizure mahazar was prepared and accused was arrested by PW1 himself. In the peculiar circumstances of the case as the accused was found inside the Cardamom Estate, the contention that there was noncompliance of the provisions relating to search and seizure cannot be sustained. There was no search of any building nor were contraband articles seized from any building and as such the provisions relating to search and seizure have no application at all. Hence, Sec.31 of the Abkari Act has no application. Here, the accused was arrested since he was found engaged in distillation of illicit arrack and keeping possession of the arrack so distilled and as such it is not a case where he was not suspected or accused of for any non- bailable offence under the Abkari Act. Sec.40(1) does not specify that the officer arresting the accused Crl.A. No.370 of 2004 -: 8 :- should be an abkari officer. It is submitted that the provisions of the Code of Criminal Procedure shall apply to all arrests, searches and seizures made under the Abkari Act. But it is submitted on behalf of the prosecution that even if it is assumed that PW1 was incompetent to arrest the accused that does not vitiate the whole trial or conviction. The decision in **Joy** v. **State of Kerala** [2010 (3) KLT 20] has also been relied upon in this connection. In that case another Single Judge of this Court held that an Assistant Sub Inspector holding the charge of Station House Officer is a competent officer to conduct search and seizure of the contraband. The Apex Court in the decision cited supra which was followed by the Division Bench in **Subash** v. **State of Kerala** [2008 (2) KLT 1047] held that the illegality or irregularity in investigation cannot vitiate the trial. As such the contention that because the case was detected by PW1, the ASI, the conviction is liable to be set aside cannot be accepted. Since the investigation was Crl.A. No.370 of 2004 -: 9 :- verified and the final report was filed by the S.I. of Police, there was no non-compliance of Sec.50(2) of the Act. 8. The fact that the independent witnesses did not support the prosecution is not a reason to discard the evidence given by PW1. There was no case that PW1 had got any grouse against the petitioner or that he had any other interest or motive to foist a false case. Though PW1 was examined, the factum of arrest of A1 and seizure of contraband as spoken to by PW1 remained unshaken. Because the identifying features of A2 could not be given, A2 was given the benefit of reasonable doubt. It is not a case where the evidence given by PW1 that another man sped away from the scene was disbelieved by the court. There was no case for the defence that any serious prejudice was caused to the accused because the investigation was conducted by PW1. That apart, the investigation was later verified by PW6, the S.I. and the charge sheet was laid by him. Crl.A. No.370 of 2004 -: 10 :- 9. The property list shows that two sample bottles of 180ml each were produced before court. The seizure mahazar also shows that only two sample bottles of 180ml each were prepared and sealed. Ext.P3 the report of the Chemical Examiner shows that three samples were sent which showed the strength of the ethyl alcohol content in it as 55.85%, 55.92% and 57.29%. Ext.P3 shows that besides the two sample bottles of 180ml another bottle containing 110ml of arrack was also examined. No clarification was given pertaining to that inconsistency. 10. The detection of the offence by the ASI itself may not vitiate the trial or conviction. Similarly, if the detection was done by the S.I. of Police or any other abkari officer even if the investigation is conducted by a subordinate police officer, who does not come within the definition of abkari officer, that also may not vitiate the trial or conviction. But if the detection was done by the ASI who is not an abkari officer and if the investigation is conducted by Crl.A. No.370 of 2004 **==> picture [34 x 9] intentionally omitted <==** the very same incompetent officer then certainly prejudice may be caused to the accused. In such cases, where the detection and investigation are conducted by the officer who is below the rank of S.I. of Police or Abkari officer then it is difficult to hold that there was no non-compliance of Sec.34 of the Act. Considering the totality of the evidences and circumstances, I find that the appellant is entitled to get the benefit of reasonable doubt. In the result, this Crl.A. is allowed. The conviction and sentence passed against the appellant are set aside. He is set at liberty. The fine amount if any remitted shall be refunded to him. **N.K.BALAKRISHNAN, JUDGE.** Jvt/Smvd