Daniel v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **THURSDAY, THE 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937** **CRL.A.No. 1970 of 2004 ( )** **--------------------------AGAINST THE JUDGMENT IN SC 357/2003 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC, FAST TRACK COURT - I, PATHANAMTHITTA DATED 10-11-2004** **APPELLANT(S)/ACCUSED: ----------------------DANIEL, S/O. IPE KOSHY, KALLOTTETHU VEEDU, VAYALA VADAKKU KARA KOZHENCHERRY TALUK.** **BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ** ## **RESPONDENT(S)/COMPLAINANT:** **---------------------------STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SRI. N.SURESH.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.1970 of 2004 ---------------------------------------------Dated this the 7[th] day of January, 2016 ## **JUDGMENT** This appeal is directed against the conviction and sentence in S.C.No.357/2003 of the Additional Sessions Judge (Adhoc)-I, Pathanamthitta u/s.55(a) of the Abkari Act. The charge against the appellant is that on 22.8.2000 at 2 p.m., when the Asst. Excise Inspector was conducting patrol duty and reached in front of the house of Vallinethu Babu, appellant was found carrying a kannas and walking by the side of the road leading to Nariyapuram Indilayappan temple, upon suspicion, he intercepted him and inspected the kannas, in which 10 liters of spirit was found. He registered a crime and after completing investigation laid charge before Crl. Appeal No.1970/2004 2 Judicial First Class Magistrate Court-II, Pathanamthitta, from there it was committed to Sessions Court, Pathanamthitta. 2. During trial, prosecution examined PW1 to PW5 and marked MO1 as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He was also heard u/s.232 Cr.P.C. He did not adduce any defence evidence. After hearing the appellant, the learned Additional Sessions Judge convicted him u/s.55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for three years and fine of 1 lakh with a default sentence of 2₹ years imprisonment. Being aggrieved by that, he preferred this appeal. 3. The learned counsel appearing for the appellant contended that the Asst. Excise Inspector detected the Crl. Appeal No.1970/2004 3 offence, conducted seizure, registered the case and completed the investigation. He is not an empowered officer as per the Abkari Act. 4. The learned Public Prosecutor strongly opposed the argument advanced by the learned counsel for the appellant. 5. The Assistant Excise Inspector, Excise Range Office, Konni detected the offence. His evidence shows that on 22.8.2000, when he reached at the place of occurrence, the accused was found in possession of 10 litres of spirit, he seized the MO1 kannas with spirit as per Ext.P1 seizure mahazar. The independent witness present there attested the mahazar. The accused was arrested and Ext.P2 is the arrest memo. Reaching at the Excise Range Office, he registered crime 22/2000 and Ext.P3 is the crime and occurrence report. Accused was produced 4 Crl. Appeal No.1970/2004 before court as per Ext.P4 remand application. Ext.P5 is the property list. The sample taken from the place of occurrence was forwarded to the chemical examination lab through court. Ext.P6 is the chemical examination report. As per Ext.P6, 19.8% of volume of ethyl alcohol was found in the sample. Subsequently, PW5 laid charge before Judicial First Class Magistrate Court, Pathanamthitta. PW5 is the Excise Inspector and he is the empowered officer as per the Abkari Act. PW2, the preventive officer supported the evidence of PW1. PW3 denied the signature in MO1 label and in Ext.P1. PW4 also denied his signature. Therefore, there is no independent corroboration to the alleged seizure and the entire procedure taken by PW1 has no legal background. 6. This court in **Subrahmaniyan v. State of Kerala [** 2010 (2) KLT 470] explained the legal impact of seizure Crl. Appeal No.1970/2004 5 and further proceedings taken by Assistant Excise ## Inspector and held as follows: “merely because the duties and responsibilities of an Assistant Excise Inspector is the same as those of an Excise Inspector, an Assistant Excise Inspector cannot be treated as an authorised officer as contemplated u/S. 4(d) and 70 of the Act. Therefore in the absence of specific conferment of powers, an Assistant Excise Inspector cannot be treated as a competent officer as contemplated u/Ss. 4(d) and 70 of the Act.” 7. The Assistant Excise Inspector was notified as an empowered officer as per SRO No.361/09 dated 8.5.09, in exercise of powers conferred under Section 4 of the Abkari Act and in supersession of the notification GO(MS) No.356/67/Rev. published in SRO.No.234/67 dated 10.08.1967, the Assistant Excise Inspector has to perform the acts and duties mentioned in Sections 40 to 53 within the areas for which they have appointed. Therefore, Assistant Excise Inspector was not a notified Abkari Officer to detect an offence on the date of seizure in this Crl. Appeal No.1970/2004 6 case. Therefore, any seizure or arrest made by PW1 is per se illegal. Accepting the principle laid down by this court in the above Subrahmaniyan's case and Sasidharan’s case, it has to be concluded that PW1, Asst. Excise Inspector was not an empowered officer under the Abkari Act to perform the duties under Section 4 and 5 of the Abkari Act. ## 8. In **Sasidharan** v. **State of Kerala 2012 (2) KLT** ## **392,** this Court held as follows; “18. Smt. Jasmine, the learned Public Prosecutor submits that the contention that even thereafter no notification was issued authorising and empowering the Assistant Excise Inspector to perform the duties under the Act cannot be countenanced in view of the subsequent notificationS.R.O. No.361/2009 dated 8.5.2009 as per which the Assistant Excise Inspector of the Range were empowered to exercise all the powers and to perform all the duties of the Excise Inspectors subject to the control of the Excise Inspector. It was further made clear that all officers of the Excise Department not below the rank of Assistant Excise Inspector were empowered to perform the acts and duties mentioned in Sections 40 to 53 (both inclusive) of the Act. They were also empowered to exercise the duties under Sections 31, 32, 34, 35, 7 Crl. Appeal No.1970/2004 38, 39 and 53 of the Act and to exercise all the powers conferred and to perform all the duties assigned on Abkari Officers under the sections aforesaid. But that notification cannot come to the rescue of the prosecution in this case since this notification S.R.O. No. 361/2009 came into force only with effect from 8.5.2009 whereas the offence in this case was detected on 19.6.2001. The incident in the case on hand took place long prior to the aforesaid notification. Hence, following the decision in Subrahmaniyan's case, it has to be held that PW2, the Assistant Excise Inspector was not empowered under the Act as it stood then, to perform the duties under the aforestated provisions. Therefore, only on this ground, this Criminal Appeal is allowed. But it is made clear that on and after 8.5.2009, the arrest of the accused, seizure of contraband, sampling, sealing and production of the accused and properties before Court, done by the Assistant Excise Inspector, would be well within his powers.” 9. In the circumstance, the conviction on the basis of the report of a non-empowered officer is unsustainable in law. Therefore, the arrest of the accused, seizure of the spirit, sampling, sealing, forwarding of the seized properties before court and obtaining chemical examination result by the Asst. Excise Inspector are void. Therefore, the conviction is to be set aside. Crl. Appeal No.1970/2004 8 10. In the result, conviction and sentence u/s.55(a) of the Abkari Act passed by the Additional Sessions Judge-I, Pathanamthitta against the appellant are set aside and the accused is acquitted and set at liberty. This appeal is allowed. **P.D. RAJAN, JUDGE.** acd Crl. Appeal No.1970/2004 9