Crl.Appeal Nos. 691 & 717 of 2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 2[ND] DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944 CRL.A NO. 691 OF 2010** **AGAINST THE JUDGMENT DATED 17.03.2010 IN S.C.NO.581/2007 OF THE ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA APPELLANTS/ACCUSED 2 & 3:** - **1 NIJEESH, KUNNATH THAZHAKUNIYIL (H), EDACHERY AMSOM, VENGOLI DESOM,VATAKARA TALUK.** - **2 SAMIL, CHERUVALATH THAZHEKUNIYIL (H), EDACHERRY AMSOM, VENGOLI DESOM, VATAKARA TALUK.** **BY ADV SRI.P.M.HABEEB** ## **RESPONDENT/STATE:** ## **STATE OF KERALA** **REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.15 OF 2005 OF VADAKARA EXCISE RANGE).** **BY SMT.MAYA M.N., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 16.08.2022, ALONG WITH CRL.A.717/2010, THE COURT ON 02.09.2022 DELIVERED THE FOLLOWING:** 2 Crl.Appeal Nos.691 & 717 of 2010 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 2[ND] DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944 CRL.A NO. 717 OF 2010** **AGAINST THE JUDGMENT DATED 17.03.2010 IN S.C.NO.581/2007 OF THE ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA APPELLANT/1ST ACCUSED:** **RATHEESH N. AGED 28 YEARS, S/O.NANU, PUTHENPURAYIL, P.O.EDACHERRY, VIA VADAKARA, KOZHIKODE DISTRICT.** **BY ADVS. SRI.C.VALSALAN SRI.GHOSH YOHANNAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA 2005 OF EXCISE RANGE), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SMT.MAYA M.N., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 16.08.2022, ALONG WITH CRL.A.691/2010, THE COURT ON 02.09.2022 DELIVERED THE FOLLOWING:** 3 Crl.Appeal Nos.691 & 717 of 2010 ## **JUDGMENT** Accused Nos.2 and 3 in S.C.No.581 of 2007 on the file of the Additional Sessions Court, Vadakara, are the appellants in Crl.Appeal No.691 of 2010. Accused No.1 is the appellant in Crl.Appeal No.717 of 2010. They were convicted for the offence under Section 55(a) of the Abkari Act, 1077 and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1 lakh with a default sentence of 6 months rigorous imprisonment. 2. Since the appeals arose from the same judgment, they are disposed of by this common judgment. 3. The case of the prosecution is that on 04.02.2005 at about 9.00 p.m. the 1[st] accused as driver of autorickshaw bearing KL-11-J-1589 and accused Nos.2 and 3 as passengers sitting in the rear seat, transported 26.64 litres of Indian Made Foreign Liquor (IMFL). They transported the liquor from Mahe to Kerala and they were caught red-handed near Azhiyur Check Post. It was alleged that they transported the liquor without any permit and thereby the accused committed the offence 4 Crl.Appeal Nos.691 & 717 of 2010 under Section 55(a) of the Abkari Act. 4. On the said charge, the accused faced the trial. The prosecution has examined PW1 to PW7 and proved Exts.P1 to P13 to establish its case. All the accused were examined under Section 313(1)(b) of the Cr.P.C. After considering the evidence on record, the learned Sessions Judge found all the accused guilty. The findings are that evidence of PWs.1 and 2, who are the Preventive Officers on duty, along with the documents proved by the prosecution is sufficient to establish the guilt of the accused. 5. Both the appeals were admitted to file and the sentence imposed on the respective accused was suspended on imposing conditions for releasing them on bail. 6. The learned counsel appearing for the appellants in both the appeals and also the learned Public Prosecutor were heard in detail. 7. The learned counsel appearing for the appellants would contend that evidence of PWs.1 and 2 alone unsupported by any independent evidence is insufficient to 5 Crl.Appeal Nos.691 & 717 of 2010 prove the arrest of the appellants and seizure of contraband from them. After the alleged seizure, the appellants and contraband were produced before PW4, who is a Preventive Officer, and it was he who took steps for registration of the crime and production of the appellants as well as the contraband before the court. PW4, being a Preventive Officer, is not an abkari officer empowered to take action under Section 40 as well as the following provisions in the Abkari Act and as such the prosecution is vitiated. The further contention of the appellants is that there has not been anything in evidence to connect the articles allegedly seized from the possession of the appellants with Ext.P13 chemical analysis report and for that reason also the prosecution is vitiated. 8. Both PWs.1 and 2 deposed regarding the arrest and seizure in tandem. While on duty at about 9.00 p.m. on 04.02.2005, they noticed an autorickshaw bearing Reg.No.KL11-J-1589 coming from Mahe side. As part of their routine check up, they stopped the autorickshaw and inspected. Three cartons were found in the platform of the rear seat. The 1[st] 6 Crl.Appeal Nos.691 & 717 of 2010 accused was driving the autorickshaw. Accused Nos.2 and 3 were sitting on the rear seat and the cartons were beneath their feet. On inspection, the boxes were found contained IMFL. One carton contained 48 bottles of 180 ml. each and other two cartons contained 24 bottles having a capacity of 375 ml. each. The accused did not have any permit for transporting liquor and therefore they were arrested. Exts.P1 to P3 are the arrest memo. After preparing samples, the contraband along with the samples were seized as per Ext.P6 mahazar. Samples and remaining contraband were duly sealed and stamped. They, on reaching the Excise Office at 7.30 a.m. on the morning of 05.02.2005, the accused along with the contraband and the documents were entrusted with PW4, a Preventive Officer in charge of the Excise Inspector. 9. PW3 is said to be an occurrence witness. He is an attestor to Ext.P6. However, he did not support the prosecution and denied having seen the arrest of the appellants or seizure of the contraband and therefore his evidence is not available for the help of the prosecution. 7 Crl.Appeal Nos.691 & 717 of 2010 10. The learned counsel appearing for the 1[st] accused would point out that there is some suspicion from the narration of PWs.1 and 2 regarding the incident. Going by their version, the driver of the autorickshaw did not make any attempt to get away from the notice of the excise officials, though he could have done by taking a deviation. From that, the innocence of the 1[st] accused, who was driving the autorickshaw can well be inferred. The learned counsel appearing for accused Nos.2 and 3 would submit that had they known about the contents of the boxes, they also would have tried to get off from being inspected by the excise officials. That would show that accused Nos.2 and 3 did not have any knowledge about the contents of the boxes, and therefore, they cannot be legally attributed with the possession of the contraband. 11. There is no much inconsistency in the evidence of PWs.1 and 2. They cogently deposed regarding the circumstances under which the autorickshaw was inspected and the contraband seized. The inspection was near Azhiyur 8 Crl.Appeal Nos.691 & 717 of 2010 Check Post and naturally, the accused would have seen the officials from a short distance. It is in evidence that there is direct view upto 100 meters from the place where the autorickshaw was inspected. However, having seen the officials, the accused also would be under the impression that the officials also had noticed the autorickshaw. In such a situation, there is no meaning in contending that it was possible for the accused to escape an inspection. When PWs.1 and 2 deposed in court without giving room for any doubt about the search, seizure and arrest of the appellants, the said circumstances cannot be a reason to discard their evidence. Ext.P6 and other contemporaneous documents certainly lent support to the oral testimony of PWs.1 and 2. Even though there is no independent evidence, the oral testimony of PWs.1 and 2 as corroborated by Ext.P6 and other documents can be believed in the light of the principle of the law laid down by the Apex Court in the following decisions. 12. The Apex Court in **Aher Raja Khima v. State of Saurashtra [AIR 1956 SC 217]** held: 9 Crl.Appeal Nos.691 & 717 of 2010 "The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration". ## 13. In **Tahir v. State (Delhi), [(1996) 3 SCC 338]** , dealing with a similar question, the Apex Court stated: "Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.” ## 14. In **Karamjit Singh v. State (Delhi** ## **Administration) [AIR 2003 SC 1311]** the Apex Court again held,- “The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other 10 Crl.Appeal Nos.691 & 717 of 2010 persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down.” 15. In **Baldev Singh vs State Of Haryana [(2015)** **17 SCC 554]** the Apex Court reiterated that view. In the light of the law referred to above, evidence of police officials can be the basis for conviction, even in the absence of any independent evidence. 16. On the arrest and seizure, PW1 produced the accused and the contraband before PW4, who was holding charge of the Excise Inspector, Vadakara Excise Range. PW4 deposed in court that he registered the crime as per Ext.P7 and forwarded the accused and the contraband to the court. Ext.P8 is the property list. An inventory regarding material objects were prepared by Assistant Excise Commissioner and submitted before the jurisdictional Magistrate, who duly had certified the same. Ext.P12 is the certificate. The samples were forwarded to the Chemical Examiners' Laboratory and obtained Ext.P13 report. 11 Crl.Appeal Nos.691 & 717 of 2010 17. Now, the question arises is whether PW4, who was holding temporary charge of Excise Inspector can be treated as Abkari officer for the purpose of production of materials objects and the accused before the court in exercise of the powers under Section 40 of the Abkari Act. The offence was committed on 04.02.2005. Therefore, the notification issued as per G.O.(Ms) No.356/67/Rev. issued on 10.08.1967 is relevant to decide whether the Preventive Officer was competent to take action under Section 40 of the Act. A subsequent notification in that regard was issued by the Government only on 08.05.2009 vide G.O.(P) No.420/2009/TD. 18. A similar question came up for considered of this Court in Crl.Appeal No.300 of 2006, which was disposed of as per judgment dated 21.12.2015 **[Rajan v. State of Kerala].** The relevant paragraphs read thus,- “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 classes; and (2) regulating the delegation 12 Crl.Appeal Nos.691 & 717 of 2010 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 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 Within the areas - to perform the acts and duties for which they mentioned in Sections 40 to 53 are appointed. inclusive of the Act. 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.” 13 Crl.Appeal Nos.691 & 717 of 2010 19. In that case also, a Preventive Officer has taken steps for production of the accused and also the contraband before the court since the Excise Inspector was not available. It was held that the registration of the crime by the Preventive Officer did not have sanction of law and resultantly the conviction was found unsustainable in law. I do no find any reason to deviate from the said view. Here, PW4 stated that he was holding the charge of the Excise Inspector. When the Excise Inspector is notified to be the Abkari officer to exercise the powers under Sections 40 to 53 of the Abkari Act, holding of temporary charge by the Preventive Officer would not clothe him with such powers of an abkari officer. Therefore, the prosecution case of the appellants became illegal. In the result, their conviction is unsustainable in law. 20. Hence, these appeals are allowed. The judgment of conviction and order of sentence dated 17.03.2010 in S.C.No.581 of 2007 of the Additional Sessions Court, Vadakara are set aside. The appellant are set at liberty. The 14 Crl.Appeal Nos.691 & 717 of 2010 bail bonds, if any, executed by them will stand cancelled. **Sd/P.G. AJITHKUMAR, JUDGE** dkr