Divakaran@Unni v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942** ## **CRL.A.No.948 OF 2006** **AGAINST THE JUDGMENT DATED 3-5-2006 IN S.C.No.358 OF 2005 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE (ADHOC)-II, THODUPUZHA** ## **APPELLANT/ACCUSED:** **DIVAKARAN@UNNI, AGED 48 YEARS S/O. ACHUTHAN, KANIYAMPARAMBIL VEEDU,, IDAMARUKU KARA, UDUMBANNOOR VILLAGE,, THODUPUZHA TALUK.** **BY ADV.SRI.RENJITH B.MARAR ADV.SRI.ARUN POOMULLI** ## **RESPONDENT/STATE OF KERALA:** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** **R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL No.948 of 2006 2 ## **JUDGMENT** **Dated this the 9th day of December 2020** ... The appellant is the accused in Sessions Case No.358 of 2005 on the file of the Additional Sessions judge (Adhoc)-II, Thodupuzha. 2. The above case is charge sheeted by the Excise Inspector, Idukki under Section 55(a) and (i) of the Abkari Act. 3. The prosecution case is that, on 14.2.2003 at 5.30 p.m., PW5, the Assistant Excise Inspector, Idukki got information that, the accused was selling liquor from his house. Hearing this, the officer entered into the house of the accused. The accused was found in possession of 5.675 litres of Indian Made Foreign Liquor. Hence, it is alleged that, the accused committed the offence. 4. To substantiate the case, the prosecution CRL.APPEAL No.948 of 2006 3 examined PW1 to PW7. Exhibits P1 to P9 are the documents marked on the side of the prosecution. Exhibit D1 to D1(b) are the documents marked on the side of the defence. One witness was examined on the side of the defence as DW1. MO1 to MO4 are the material objects. 5. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 55(a) and (i) of the Abkri Act. The accused is sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1 lakh. In default of payment of fine, the accused is sentenced to undergo rigorous imprisonment for three months. 6. Aggrieved by the above conviction and sentence, this criminal appeal is filed. 7. Heard Advocate Sri.Arun Poomulli, the learned counsel appearing for the appellant. Heard the learned Public Prosecutor also. CRL.APPEAL No.948 of 2006 4 8. The learned counsel for the appellant submitted that, the entire prosecution is vitiated for the simple reason that the search, seizure and arrest are conducted by the Assistant Excise Inspector. According to the counsel, for that simple reason, the entire prosecution is unsustainable. The counsel submitted a detailed argument note also which will be part of the record. The counsel submitted that, the appellant is entitled the benefit of doubt on several grounds. He raised eight points in the argument note to substantiate his case. 9. The learned public prosecutor submitted that, there is oral and documentary evidence to prove the case against the appellant and there is nothing to interfere with the conviction and sentence imposed by the lower court. 10. The point for consideration in this case is whether the appellant committed the offence under Section 55(a) and (i) of the Abkari Act. CRL.APPEAL No.948 of 2006 5 11. Admittedly, an Assistant Excise Inspector conducted the search, seizure and arrest in this case. He is not an authorized officer as per the Abkari Act till 8.5.2009 for arrest, search and seizure. The alleged incident in this case was on 14.02.2003. If an unauthorized person conducted search, seizure and arrest, I think, the entire prosecution will vitiate for that simple reason. In Bhaskaran v. State of Kerala [2018 (4) KLT 894], Subrahmaniyan v. State of Kerala [2010 (2) KLT 470] and Sasidharan v. State of Kerala [2012 (2) KLT 392] this Court considered this point. 12. The relevant portion of the judgment in Bhaskaran’s case (supra) is extracted hereunder : _“12. Here in this case, PW1 was only an Assistant Excise Inspector. It was argued by the learned counsel for the appellant that the arrest of the accused, the seizure of the articles and sampling of the articles done by the Assistant Excise Inspector were without jurisdiction. Since the illegality annexed to the main parts i.e., the arrest, seizure and sampling, that will go to the root of the matter and hence the cognizance taken and the_ CRL.APPEAL No.948 of 2006 6 _trial conducted based on such a report are vitiated. Though as per SRO No.234/1967, Preventive Officers were invested with the powers to be exercised under Sections 31, 32, 35, 38, 39, 53 and 59, since the preventive officers are officers specifically named as per the aforesaid notification, the arrest of the accused and seizure of the articles and the production of the accused and property before the Magistrate by the Assistant Excise Inspector, who is not a named or notified officer, are without jurisdiction as has been held by this Court in Subrahmaniyan v. State of Kerala (2010(2)KLT 470)._ _13. It has also come out in evidence that the notification-SRO.361/2009 dated 08.05.2009, 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. So, as per the latest notification of 2009, 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, 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. 14. In this case, the offence was_ CRL.APPEAL No.948 of 2006 7 _detected on 16.4.2002 i.e., before the notification S.R.O.361/2009 dated 08.5.2009. So, the above said notification will not rescue the prosecution in this case since the offence was detected on 16.4.2002. So, the only basis on the notification S.R.O.234/1967, the Assistant Excise Inspector was not mentioned as authorised person to detect the offence. Only the offences detected by the Assistant Excise Inspector after 8.5.2009 is to be well within his power. So only the sole ground that the Assistant Excise Inspector was not empowered under the Act as has held in the ruling in Subrahmaniyan's case (supra), the appellant herein is entitled to get acquittal as prayed or. Accordingly, this appeal is allowed.”_ 13. Similarly in Sasidharan’s case (supra) also, the same point is considered. The relevant portion is extracted hereunder : _“17. But it is argued by the learned counsel for the appellant that as per Section 70 of the Act, all notification and orders conferring powers, imposing duties and making appointments under the act may respectively refer to the persons concerned specially by name or in virtue of their office or to classes of officials generally by the official titles. It is argued since as per the notification in S.R.O.No.234/1967 it was_ CRL.APPEAL No.948 of 2006 8 _specifically mentioned that the acts and duties mentioned in Sections 40 to 53 of the Act are to be performed by the officer not below the rank of Excise Inspector and since PW2 was only an Assistant Excise Inspector, the arrest of the accused, seizure of the articles and sampling of the articles done by him were without jurisdiction. Since the illegality annexed to the main parts i.e., the arrest, seizure and sampling, that will got to the root of the matter and hence cognizance taken and the trial conducted based on such a report are vitiated. Though as per S.R.O.No.234/1967, Preventive Officers were invested with the powers to be exercised under Sections 31, 32, 35, 38, 39, 53 and 59, since the preventive officers are officers specifically named as per the aforesaid notification, the arrest of the accused and seizure of the articles and the production of the accused and property before the Magistrate by the Assistant Excise Inspector who's not a named or notified officer, are without jurisdiction as has been held by this Court in Subrahmaniyan v. State of Kerala 2010(2)KLT 470)._ _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 notification S.R.O.No.361/2009_ CRL.APPEAL No.948 of 2006 9 _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, 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_ CRL.APPEAL No.948 of 2006 10 _properties before Court, done by the Assistant Excise Inspector, would be well within his powers.”_ 14. In the light of the above point, I do not want to consider the other points raised by the counsel for the appellant. According to me, the entire prosecution is vitiated for that simple reason. Hence, this criminal appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 3-5-2006 in S.C.No.358 of 2005 on the file of the Additional Sessions Judge (Adhoc)-II, Thodupuzha are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **pkk** **JUDGE**