C.V. Mohanan v. State of Kerala

1 Crl.Appeal No.2039/2005 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 30TH DAY OF SEPTEMBER 2020 / 8TH ASWINA, 1942** **CRL.A.No.2039 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 308/2003 DATED 29-10-2005 OF ADDITIONAL DISTRICT COURT (ADHOC)-I, KALPETTA** ## **APPELLANT/ACCUSED:** **C.V.MOHANAN S/O.VELAYUDHAN, NOW RESIDING AT CHENTHURUTHY, HOUSE, MADATHUMPADY P.O., THRISSUR DISTRICT,, KERALA STATE, PIN-680 733.** **BY ADVS. SRI.P.N.SANTHOSH SMT.K.P.GEETHA MANI** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, REPRESENTING THE EXCISE INSPECTOR,, SULTHAN BATHERY, WYNAD.** **R1 BY PUBLIC PROSECUTOR** **OTHER PRESENT:** **SRI.K.B.UDAYAKUMAR, SR.GP.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.2039/2005 ## **JUDGMENT** ## **Dated this the 30[th] day of September, 2020** The appellant is the accused in S.C. No.308/2003 on the file of the Additional Sessions Judge, (Adhoc)-I Kalpetta. The above case was chargesheeted by the Excise Inspector, Sulthan Bathery against the accused alleging offence punishable under Sections 55 (a) of the Kerala Abkari Act. 2. The prosecution case is that on 6.7.2001 at 3 p.m., the accused was found in possession of 3 litres of illicit arrack by the Excise Inspector and party who were on patrol duty. The offence was detected by PW1 who is the Excise Inspector of Sulthan Bathery. 3. To substantiate the case, the prosecution examined PW1 to PW5. Exts.P1 to P7 are the exhibits marked on the side of prosecution. M.O.1 is the material object marked by the prosecution. After going through the evidence and documents in this case, the trial court found that the accused committed the offence under Section 55 (a) of the Kerala Abkari Act. 3 Crl.Appeal No.2039/2005 Accordingly, the accused is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1 lakh under Section 55(a) of the Abkari Act. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for six months. Aggrieved by the conviction and sentence, this Crl.Appeal is filed. 4. Heard the counsel for the appellant and the learned Public Prosecutor. 5. The counsel for the appellant submitted that the investigation in this case is conducted by PW5, the Excise Inspector, Kalpetta. The detection was within the jurisdiction of Excise Inspector Sulthan Bathery. The counsel submitted that PW5 has no jurisdiction to investigate the case. According to the counsel, he is not authorised as per the provisions of the Abkari Act. The counsel submitted that in the light of the judgment in _**Balachandran v. State of Kerala (2020 (3) KHC 697**_ ) the entire trial in this case is vitiated because an unauthorised officer investigated the case. 6. The Public Prosecutor submitted that there is oral and documentary evidence to prove the case. The Prosecutor submitted that this Court may not interfere with the well 4 Crl.Appeal No.2039/2005 considered judgment of the trial court based on technical ground. 7. The point for consideration in this appeal is whether the accused committed the offence under Section 55(a) of the Abkari Act. 8. The admitted case is that the arrest and seizure of the contraband article was within the jurisdiction of Excise Inspector, Sulthan Bathery. The detection was also done by the Excise Inspector, Sulthan Bathery who was examined as PW1. But the investigation was conducted by PW5, the Excise Inspector, Kalpetta. The question is whether PW5 is authorised to conduct investigation based on an authorisation from Assistant Excise Commissioner within the area of the Excise Range, Sulthan Bathery. This point is considered by this Court in detail in Balachandran's case(supra). The relevant paragraphs of the judgment is extracted hereunder. - _“12. A reading of the proviso to the above notification, it is clear that, concerning Sections 31 and 34 of the Act, there is no limit of jurisdiction within the Kerala State for the Abkari and other Department Officers named therein, but all persons arrested and all seizures made thereunder shall without delay be made over to the Excise Officer possessing local jurisdiction._ 5 Crl.Appeal No.2039/2005 _Section 31 of the Abkari Act deals with Abkari and Police officers' power to search houses, etc. without a warrant. Section 34 of the Act deals with the power to arrest without warrant in any public place, thoroughfare or open space other than a dwelling house. Actually, Ext.P8 is issued only in accordance with the above proviso to the notification. In Ext.P8, the power is given to Aluva Circle, Aluva Range, and Angamaly Range of the Excise Department for conducting a special check at Moothakunnam toll for curbing effectively Indian made foreign liquor seconds and other illicit articles. Accordingly, PW1 conducted the detection and arrest of the accused in this case. After arrest and seizure, he produced the accused and the contraband articles along with the vehicle before the Excise Officer having local jurisdiction over Moothakunnam Toll, and he is charge witness No.11 in this case. There is no defect in the arrest, seizure of the contraband article by PW1 from Moothakunnam toll junction, even though, it is not an area within the jurisdiction of PW1 in the light of the proviso to S.R.O.No.234/67. Therefore, the arrest and seizure of the property are proved in this case with the evidence of PW1. Of course, PW2 and PW3 turned hostile to the prosecution. But, they admitted their signature in Ext.P1 seizure mahazar. Simply because, the independent witnesses turned hostile after admitting their signature in the seizure mahazar, the entire arrest and seizure will not vitiate. Therefore, here is a case where the prosecution is able to prove that as per_ 6 Crl.Appeal No.2039/2005 _Ext.P1 seizure mahazar, PW1 seized the article mentioned in it along with the appellant and his vehicle. It is also proved that PW1 produced the accused, seized material along with the vehicle before the jurisdictional Excise Range Officer, who is charge witness No.11._ _13. When the accused and articles were produced before the jurisdictional Excise Inspector, he conducted the preliminary investigation. He prepared Ext.P3 occurrence report, Ext.P4 list of thondi and Ext.P5 forwarding note. After that, the investigation is conducted by PW4, the Excise Inspector, Aluva Excise Range. He did further investigation after the investigation conducted by charge witness No.11. Charge witness No.11 was not available for examination because he was on long leave. Hence, Exts.P3 to P5 were marked through PW4. Thereafter, the charge was verified and final report was filed by PW5, who is the Circle Inspector of Aluva Excise Range. The contention of the appellant is that, the Excise Inspector or the Circle Inspector of Aluva Excise Range have no jurisdiction to investigate this case and file the final report before the court because there was no authorization to them under Section 4 of the Abkari Act. I think there is some force in the contention of the appellant. Admittedly, S.R.O.No.234/67 is applicable during the period in which the arrest, seizure and the investigation in this case happened. S.R.O. No. 234/57 was superseded only on 8.5.2009 as per S.R.O. No.361/2009._ 7 Crl.Appeal No.2039/2005 _14. S.R.O.No.234/67, which is extracted above, will show that the investigation and final report under Section 50 of the Abkari Act can be submitted by all the Officers of the Excise department, not below the rank of Excise Inspectors within the areas for which they are appointed. ‘Abkari Officer’ is defined as per Section 3(2) of the Abkari Act which is extracted hereunder: “Abkari Officer: means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5.” S.R.O. No.234/67 was issued by the Government as per Section 4 of the Kerala Abkari Act. As per the above notification, all officers of the Excise Department not below the rank of Excise Inspector are authorized to perform the acts and duties mentioned in Sections 40 to 53 within the area for which they are appointed. Similarly, the Commissioner of Excise, the Joint Commissioner of Excise, Deputy Commissioners of Excise and all Assistant Commissioners of Excise to be Abkari officers under their respective denominations for the purpose of Sections 31,32,34, 35,38, 39,53, 59,67 and 67A of the Abkari Act and to discharge of the duties conferred and imposed on Abkari officers in the Sections aforesaid. The Commissioner of Excise and the Joint Commissioner of Excise are having jurisdiction throughout the State. But, Deputy Commissioners of Excise and the Assistant Commissioners of Excise have jurisdiction only within the area for which they are appointed. Circle Inspectors of Excise, Excise Inspectors, attached to the_ 8 Crl.Appeal No.2039/2005 _circle and Excise Inspectors in charge of Ranges will be 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 Sections aforesaid within their respective jurisdiction. Similarly, clause 11,12 and 13 of SRO No.234/67 give powers to different officers within their respective jurisdiction or within the area for which they are appointed._ _15. Therefore, it is clear that all Excise Department officers not below the rank of Excise Inspector can file a final report under Section 50 only if the detection is within the area for which they are appointed. Clause (8) of SRO No.234/67 is clear about that. Ofcourse, in the proviso to SRO No.234/67, it is stated that, with reference to Sections 31 and 34 of the Act, there shall be no limit of jurisdiction within the Kerala State for the Abkari and other Department Officers named therein; but all persons arrested and all seizures made thereunder shall, without delay, be made over to the Excise Officer possessing local jurisdiction._ _16. Admittedly, in this case, final report is filed by PW5 who is the Excise Circle Inspector of Aluva Excise Range. Admittedly, arrest and seizure of the contraband article in this case happened within the jurisdiction of Excise Range, North paravur. In such a situation, PW5 has no authority or authorization to submit the final report in this case. Only charge witness No.11, the Excise Inspector of North Paravur_ 9 Crl.Appeal No.2039/2005 _Excise Range or any competent officers of Excise Range, North Paravur can conduct investigation and submit final report in this case. In this case, an incompetent officer filed the final report under Section 50 of the Abkari Act. It is a fundamental defect that will go to the root of the case. The Magistrate cannot take cognizance based on a final report submitted by an incompetent officer.”_ 9. In the light of the above judgment according to me PW5 is not authorised to conduct the investigation in this case. This will go to the root of the case in the light of the above judgment. Therefore, the appellant is entitled the benefit of doubt. Hence this Crl.Appeal is allowed. Conviction and sentence imposed on the accused as per judgment dated 29.10.2005 in S.C. No.308/2003 on the file of the Additional Sessions Court (Adhoc)-I, Kalpetta is set aside. The accused is set at liberty and the bail bond if any, executed by him is cancelled. Sd/- **P.V.KUNHIKRISHNAN JUDGE** al/-