E.M. Reji v. The Excise Inspector, Sulthan Bathery Excise Range and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 16TH DAY OF OCTOBER 2020 / 24TH ASWINA, 1942** ## **CRL.A.No.1640 OF 2005** **[AGAINST THE JUDGMENT IN S.C. NO.246/2003 DATED 31-08-2005 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE (ADHOC)-1, KALPETTA]** ## **APPELLANT/ACCUSED:** **E.M.REJI, S/O. MADHAVAN, ELAVAMTHODI VEEDU, 6TH MILE, KIDANGANADU AMSOM, SULTHAN BATHERY.** **BY ADV. SMT.K.V.RESHMI** ## **RESPONDENTS/COMPLAINANT AND STATE:** - **1 THE EXCISE INSPECTOR, SULTHAN BATHERY EXCISE RANGE(CRIME NO.39/2001).** - **2 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** ## **SRI.K.B.UDAYAKUMAR, PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-10-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL NO.1640/2005 2** ## JUDGMENT Dated this the 16th day of October 2020 … The appellant is the accused in Sessions Case No.246 of 2003 on the file of the Additional Sessions Court (Adhoc)-I, Kalpetta. The above case is charge sheeted against the appellant alleging offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that, the accused was found in possession of about four liters of illicit arrack in a black jar by the Excise Inspector and party while they were on patrol duty on 24.8.2001 at about 6.15 p.m. at a place on the road junction at 5[th] kavala, Ancherikunnu Bhagam, Kidanganad village and thus the accused committed the said offence. 3. The case was detected by the Excise **CRL.APPEAL NO.1640/2005 3** Inspector, Sulthanbathery. 4. To substantiate the case, the prosecution examined PW1 to PW5. Exhibits P1 to P11 are the documents marked on the side of the prosecution. MO1 is the material object. 5. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 55(a) of the Abkari Act. He is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the appellant is directed to undergo rigorous imprisonment for three months. 6. Aggrieved by the above conviction and sentence, this criminal appeal is filed. 7. Heard the learned counsel for the appellant and the learned public prosecutor. 8. The learned counsel for the appellant submitted that, the entire prosecution case is ## **CRL.APPEAL NO.1640/2005 4** vitiated for the simple reason that, an unauthorized person investigated this case. The counsel submitted that, the detection is within the jurisdiction of Excise Inspector, Sulthanbathery. But the investigation was conducted by the Excise Inspector, Kalpetta. The learned counsel relied the judgment of this Court in **Balachandran v. State of Kerala** [2020(3) KHC 697]. 9. The learned public prosecutor submitted that, there is oral and documentary evidence to prove the offence under Section 55(a) of the Abkari Act. The public prosecutor submitted that, this Court may not interfere with the conviction order based on technical grounds. 10. The point for consideration in this case is whether the appellant committed the offence under Section 55(a) of the Abkari Act ? 11. Admittedly, the Excise Inspector, ## **CRL.APPEAL NO.1640/2005 5** Sulthanbathery detected the offence. The detection is also within the jurisdiction of Excise Inspector, Sulthanbathery. But the investigation of the case was conducted by the Excise Inspector, Kalpetta range. Whether such an Excise Inspector can investigate this matter?. This point was considered by this Court in **Balachandran's** case(supra). The relevant paragraphs of the above judgment are extracted hereunder: _**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.**_ **CRL.APPEAL NO.1640/2005 6** _**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 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.**_ _**17. This court, in Suresh v. State of Kerala [2017(2) KHC 891] considered this point. The relevant portion of the above judgment is extracted hereunder: 15. S.31 of the Act deals with search in houses and other buildings, and S.34 of the Act deals with seizure or arrest generally. Detection can be made by the competent officers only within their jurisdiction. The proviso to the Government Order says otherwise that**_ **CRL.APPEAL NO.1640/2005 7** _**the said limitation prescribed by way of jurisdictional limits under the Government Order will not apply to detection made under S.31 or S.34 of the Act. If such a proviso is not there, or if such a protection is not given to detections made by other officers, law breakers can very conveniently escape by the time the right officer of the concerned Range or Circle turns up or rushes to detect the offence. That is why the Government added a proviso to the Government Order, that as regards detection under S.31 or S.34 of the Act, the limit of jurisdiction shall not apply. As regards the other powers like the power to register crimes, or the power to conduct investigation, there is no such protection or relaxation. The provision is never meant to give authority to officers not covered by the Government Order. Only those categories of officers specifically empowered and covered by the Government notification issued under S.4 of the Act can claim the benefit of the proviso, and only those categories can detect offences under S.31 or 34 of the Act beyond their territorial limits. Such an exception**_ **CRL.APPEAL NO.1640/2005 8** _**under the proviso, or such a relaxation brought with a particular object, cannot be extended to other categories who are not authorized by the Government under S.4 of the Act. So, I find that the Circle Inspector of Excise who detected the offence in this case cannot find any excuse or justification under the proviso to the Government notification issued in 1967 as SRO 234/1967. I find that he was incompetent to make detection, and that investigation was also conducted by another incompetent officer. The final report was also submitted by the very same incompetent officer. The benefit of these illegalities and infirmities must necessarily go to the accused.”**_ 12. In the light of the above judgment, the investigation conducted by the Excise Inspector, Kalpetta is without jurisdiction. This Court observed in the above judgment that, such practice is a fundamental defect that will go to the root of the case. In such circumstances, there is no option except to acquit the accused. **CRL.APPEAL NO.1640/2005 9** Hence, this criminal appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 31.08.2005 in S.C.No.246 of 2003 of the Additional Sessions Court (Adhoc)-1, Kalpetta 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**