Bhavani v. State of Kerala and The Excise Inspector, Excise Range Kottarakkara

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 13TH DAY OF FEBRUARY 2020 / 24TH MAGHA, 1941** ## **CRL.A.No.675 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 1600/2002 DATED 18-03-2008 OF SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA** ## **APPELLANT/S:** **BHAVANI, W/O KRISHNANKUTTY, ALUMMOOTTIL VEEDU, ATTUV ASSERI MURI,, KULAKKADA VILLAGE, KOTTARAKARA.** **BY ADVS. SRI.ALEXANDER GEORGE SRI.DILIP MOHAN** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 2 THE EXCISE INSPECTOR, EXCISE RANGE KOTTARAKARA.** ## **OTHER PRESENT:** ## **SR.PP.SRI.B.JAYASURYA.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**Crl.A.675/08**_ 2 ## **V.G.ARUN, J. ----------------------------------------------Crl.A.No. 675 of 2008 ----------------------------------------------Dated this the 13[th] day of February, 2020** ## **JUDGMENT** The appellant, who was the accused in S.C.No.1600 of 2002 of the Additional Sessions Court (Abkari Cases), Kottarakkara, stands convicted for the offence punishable under Section 55(a) of the Abkari Act. The prosecution had alleged that, on 28.12.1998 at about 12.30 p.m., the Excise patrol party had found the accused on the AttuvasseriAttukadavu Road. The accused was carrying a black jerrycan containing some liquid. On seeing the patrol party, the accused tried to flee, but tripped and fell and was accosted. On examination, the 5 litre can carried by the accused was found to contain 2 litres of arrack. Thereupon the contraband was seized, the accused arrested, sample drawn from the contraband and crime registered for the offences under Sections 55(a) and 55(i) of the Abkari Act. In order to prove its case, the prosecution examined PWs 1 to 3 and marked Exhibtis P1 to P7. The black jerrycan containing arrack was identified and marked as MO1. During her questioning under Section 313 Cr.P.C., the accused denied the incriminating circumstances and on being called upon to enter her defence, examined herself as DW1, a neighbour as DW2 and _**Crl.A.675/08**_ 3 marked Exhibit D1 in evidence. The trial court, on analysis of the evidence, both oral and documentary, and on consideration of the rival contentions, found that the prosecution had succeeded in establishing commission of the offence under Section 55(a) of the Abkari Act (for short, 'the Act') by the accused, convicted and sentenced her to undergo simple imprisonment for one year and to pay a fine of Rs.1 lakh, with default sentence of simple imprisonment for six months . The accused was found not guilty of the offence under Section 55(i) of the Act and was acquitted of the said offence. 2. Heard Sri.Alexander George, learned Counsel for the appellant and Sri.B.Jayasurya, learned Senior Public Prosecutor. 3. Learned counsel for the appellant would submit that the prosecution had failed to prove its allegation through the evidence of PWs 1 to 3. It is submitted that the incident leading to the arrest of the appellant had not occurred in the manner alleged by the prosecution. That, on the date of incident, while the appellant was walking on the Attuvasseri-Attukadavu Road, the vehicle of the Excise party had hit her from behind, as a result of which the appellant fell down and sustained injuries, including fracture of left hand. Thereupon the vehicle stopped near the appellant and in the guise of taking the appellant to the nearest hospital, she was taken to the Excise Office and the case foisted upon her. It is contended that CW1, who was the detecting officer, died and thereafter the investigation was entrusted _**Crl.A.675/08**_ 4 with PW2, two years after the alleged incident. That, the delay in conducting the investigation had prejudiced the accused. It is contended that the detecting officer was not a competent officer as envisaged under Section 4 of the Act and therefore the investigation, trial and conviction is vitiated. It is contended that the sample of the alleged contraband was not taken in the manner prescribed and that discrepancy with regard to the number of the material object itself is sufficient to establish the falsity of the prosecution allegations. Yet another contention is with regard to the absence of the sample seal in Exhibit P6 forwarding letter under which the sample was sent for chemical analysis. It is also contended that there is discrepancy between the number endorsed in Exhibit P5 list of material objects and the number in Exhibit P6 forwarding note. It is pointed out that in Exhibit P5 the number is noted as T466/98, whereas in Exhibit P6, the number is noted as T460/98. Lastly it is contended that the accused is a widow aged more than 80 years suffering from various age related ailments. 4. The oral evidence tendered on behalf of the prosecution consists of the testimony of Pws 1 to 3. PW1 is an Excise Guard and a member of the patrol team which had apprehended the accused, seized the contraband, drawn the sample, arrested the accused and had produced the contraband and the accused at the Excise Range Office resulting in the registration of C.R.No.87/98 by the Circle _**Crl.A.675/08**_ 5 Inspector of Excise, Kottarakkara. PW2 is the Excise Inspector with whom the investigation was entrusted after the death of CW1. PW2 had questioned the witnesses and had completed the necessary formalities, including filing of final report. PW3 is the independent witness who was sought to be examined as an attestor to PW1 Mahazar, but was declared hostile since he did not support the prosecution case. 5. The contention of the learned counsel for the appellant regarding delay in the investigation and the impact of nonexamination of the detecting officer has to be considered in the light of the oral testimony of the aforementioned witnesses. On a close scrutiny of the oral evidence of PW1 and PW2, it can be seen that they have given a succinct narration regarding the sequence of events from the time when the accused was apprehended till the registration of the crime. Therefore, the non-examination of the detecting officer has not in any manner materially affected the trial of the case. As far as the contention regarding delay in completing the investigation is concerned, other than the contention raised at this appellate stage, absolutely no question with regard to the delay and the prejudice that it had caused to the accused was put to PW2 the investigating officer. As held by this court in _**Santhosh T.A and Another v. State of Kerala**_ [ILR 2018 (1) Ker. 291], for the court to take notice of the delay in recording statements of witnesses, it is necessary for the defence to _**Crl.A.675/08**_ 6 question the investigating officer about it, so that he may give an explanation. If such questions were not put, the court will ignore the delay. 6. The next contention to be dealt with is with regard to the authority of CW1, who was a Preventive Officer in the Excise Department, to seize the contraband and arrest the accused. The contention is raised on the premise that CW1 was not an officer falling within the definition of 'Abkari Officer', as defined under Section 3(2) of the Act, and notified as such in the manner contemplated under Section 4. It is contended that Section 50 mandates that, as soon as investigation into the offences under the Act is completed, the 'Abkari Officer' shall forward to the jurisdictional Magistrate, a report in accordance with sub-section (2) of Section 173 Cr.P.C. It is contended that the notification empowering preventive officers as Abkari Officers was issued only on 8.5.2009, as per SRO.361/2009 and therefore as on 28.12.1998, the date on which the accused was arrested, the contraband seized and the crime registered, CW1 was not competent to do the said acts and hence the further investigation, final report and trial conducted based on the detection, seizure and arrest by an incompetent officer are vitiated. 7. It is settled law that only a competent officer can arrest the accused, seize the contraband and draw the sample. The short question is as to whether CW1 was empowered in that regard. The _**Crl.A.675/08**_ 7 Government had, in exercise of powers conferred by Section 4 of the Act, issued SRO.No.234/67 dated 10.8.1967 appointing enumerated officers to exercise the powers and perform the duties specified in the notification, within their jurisdictional limits. Under the Government order, Preventive Officers of the Excise Department on duty within Kerala State were designated as Abkari Officers under their respective denominations for the purpose of Sections 31, 32, 34, 35, 38, 39, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers in the aforesaid Sections within the respective jurisdiction. It is therefore clear that as per SRO.234/67, CW1, who was a Preventive Officer, was empowered to function as an Abkari Officer and to exercise the power of arrest and seizure under Section 34 of the Act. Hence, the contention regarding lack of competence of CW1 is liable to be rejected. 8. The next contention is regarding the discrepancy with regard to the number noted in Exhibits P5 and P6. A perusal of Exhibtis P5 and P6 would show that the relevant number is T460/98, though the casual manner in which the number has been written in Exhibit P5 will create an impression that the number is T466/98. It may be this impression that prompted PW2 to state the number to be T466/98 in his oral testimony. This mistake, by itself, does not in any manner vitiate the production and forwarding of the sample. 9. The other contention regarding the failure of the prosecution to _**Crl.A.675/08**_ 8 prove that the sample was properly sealed at the time of seizure and drawing sample and was kept in safe custody till it reached the chemical analyst. For considering this contention, the oral testimony of PW2 has to be scrutinized. In his chief examination, PW2 has stated that Exhibit P5 property list was accepted by the court with the number T466/98. He also stated that the requisition for chemical analysis was given by CW1. During cross-examination, PW2 stated that the number noted in MO1 is 464/98. He had admitted that the label containing the signatures of the witnesses was in a torn condition. In Exhibit P6 forwarding note the sample of the seal affixed on the item sent for sampling is conspicuously absent. In such circumstances, there was nothing before Chemical Examiner and the trial court to ensure that the sample drawn from the contraband and the same sample produced before court and sent for chemical analysis were the same. As held by this Court in _**Vengadan Narayanan @ Achootty v. State of Kerala**_ [2019 (3) KLJ 862], proof of mere seizure of liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable under Section 55(a) of the Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon the report of chemical analysis to prove that the article was contraband liquor, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken _**Crl.A.675/08**_ 9 from the liquid seized. The accused cannot be convicted in a prosecution for the offence under Section 55(a), in the absence of proof that the sample analysed by the Chemical Examiner was the very same sample from the liquid allegedly seized from the possession of the accused. The prosecution has to prove all the links commencing from seizure of sample, up to the point the sample had reached the hands of the Chemical Examiner. Similar view was expressed by this Court in _**Sukumaran v. State of Krala**_ [ILR 2019(4) Ker.70] also. Offences under the Abkari Act being serious offences entailing severe punishment, the detecting and investigating officers cannot conduct the investigation in a casual manner. The result of their casual approach would be acquittal of the accused. In the instant case, the manner in which the sample was drawn from the contraband, produced in court and sent for analysis under a forwarding note, which was lacking in material particulars, leave me with no option other than to acquit the accused, as the trial stood vitiated. In the result, the appeal is allowed by setting aside the impugned judgment and the accused is acquitted. The surety bond executed by the accused will stand cancelled. Sd/- **V.G.ARUN, JUDGE** _vgs_