Iswaran v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 23[RD] DAY OF DECEMBER 2021 / 2ND POUSHA, ``` ``` 1943 ``` ## **`CRL.A NO. 568 OF 2014`** ``` AGAINST THE JUDGMENT IN SC NO.688/2012 OF III ADDITIONAL DISTRICT AND SESSIONS COURT, PALAKKAD ``` ## **`APPELLANT/ACCUSED:`** ``` ISWARAN AGED 49 YEARS S/O.PAZHANI SWAMI, XII/400, PADAVAYAL VILLAGE, PUTHUR, MANNARKKAD, PALAKKAD DISTRICT. ``` ``` BY ADV SRI.BABU S. NAIR ``` ## **`RESPONDENTS/STATE&COMPLAINANT:`** ``` 1THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2THE EXCISE INSPECTOR EXCISE RANGE, AGALI, PALAKKAD DISTRICT, PIN - 678 001. ``` ``` SRI M.P.PRASANTH (PUBLIC PROSECUTOR) ``` ``` THIS CRIMINAL APPEAL HAVING FINALLY HEARD ON 20.10.2021, THE COURT ON 23.12.2021 DELIVERED THE FOLLOWING: ``` Crl.A. No.568 of 2014 -:2:- ## MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 568 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of December, 2021 ## JUDGMENT The judgment passed by Additional District and Sessions Judge-III, Palakkad (for short, ‘the court below’) on 13.06.2014 in S.C.No.688/2012 is assailed in the revision on hand. Appellant is the sole accused in the case. He faced trial for an offence under Section 8(1) punishable under Section 8(2) of the Kerala Abkari Act (for short, ‘the Act’ ) and found guilty by the court below and was convicted and sentenced to undergo simple imprisonment for one year and pay a fine of Rs.1,00,000/- and to undergo simple imprisonment for three more months as default sentence. 2. In the appeal on hand, he seeks to reverse the above judgment for the reason that the officer who registered the crime after detection of the offence and seizure of the contraband was a preventive officer of the Excise Department not empowered to do so. The learned counsel has invited the attention of this Court to Section 3(6) of the Act, which states Crl.A. No.568 of 2014 -:3:- that an Abkari Inspector is an officer appointed under Clause (d) of Section 4 of the Act. Under the Act, an Abkari Officer is also defined under Clause (2) of Section 3 of the Act and it takes within it’s ambit the Commissioner of Excise, or any officer or other person lawfully appointed or invested with powers under Section 4 or 5. As per Clause (d) of Section 4, an Abkari Officer is empowered to act under Sections 40 to 53 of the Act. As per notification issued by the State Government as SRO 234/1967, a preventive officer is not entitled to exercise any of the powers stipulated under Sections 40 to 52 of the Act. The power to act under Sections 40 to 52 are vested only with the officers of the Excise Department not below the rank of Excise Inspectors. The officer who has registered the crime in the case on hand being a preventive officer of the Excise Department and below the rank of an Excise Inspector is undoubtedly not an officer competent under the Act to register a crime. 3. The learned counsel has also invited attention of this Court to Section 38 of the Act which casts every officer of the Government other than an Abkari officer, duty to give immediate information to an Abkari officer and every Abkari officer to give Crl.A. No.568 of 2014 -:4:- immediate information either to his immediate superior officer or to an Abkari Inspector, about breaches of any of the provisions of this Act, which comes to his knowledge and all such officers are bound to take all reasonable measures in their power to prevent the commission of any such breaches which they may know or have reason to believe are about or likely to be committed. According to the learned counsel, the immediate information about the breach of the provisions of the Act as mandated by Section 38 of the Act was not transpired by the preventive officer, who had registered the crime to any of the Abkari officers, superior in rank to him. According to the learned counsel, the trial is vitiated for that sole reason itself. 4. This Court has noticed that the preventive officer is empowered to detect and seize any contraband which had come to his notice while being engaged in his official duty. But the preventive officer being an officer subordinate to an Abkari officer, is not empowered by the Act to register a crime regarding breach of any of the provisions of the Abkari Act. Similarly, when a preventive officer or any other officer of the Excise had come to know about breach of any of the provisions Crl.A. No.568 of 2014 -:5:- of the Abkari Act, he shall give immediate information either to his immediate official superior or to an Abkari Inspector. In the case on hand, preventive officer has registered the crime on the basis of the seizure of the contraband, arrest of the contraband by an officer superior in rank to him. 5. A Single Bench of this Court has held in Suresh Babu v. State of Kerala [2017 (4) KHC 693] that non reporting of commission of offence as per the provisions of the Act is fatal and the accused is entitled for acquittal. This Court has noticed that the detection of the offence, seizure of the contraband arrest of the accused and other formalities were carried out at the spot of detection by PW1 who was a Circle Inspector of Excise Enforcement Anti Narcotic Special Squad, Palakkad while on patrol duty with other officer of Excise and the investigation in the case on hand were conducted by an officer superior in rank to the preventive officer. He was also examined before the court as PW6. Registration of crime is only a formality to open up investigation. For the reason that crime was registered by not an officer empowered by Notification issued by the Government as S.R.O.No.321/96 in exercise of Section 4 of Crl.A. No.568 of 2014 -:6:- Abkari Act will not vitiate the trial in the factual context, where detection and investigation were done by officer superior to him. 6. In the case on hand, the prosecution had examined PWs 1 to 6 and marked Exts.P1 to P11 in evidence. The defence did not adduce any evidence. The detection was by the Excise Circle Inspector, Excise Enforcement and Anti Narcotic Special Squad, Palakkad assisted by PW2, who is an officer of the Excise Department, who was a member of the patrolling team. The detecting officer who was examined as PW1 deposed all material particulars of the prosecution case correctly and precisely. He has also faced the lengthy cross examination by the counsel for the defence but his credibility could not be impeached by the defence. PW2, the officer who accompanied PW1 has also deposed about the case of the prosecution categorically and corroboratively, strictly supporting the version of PW1. PWs 3 and 4 are independent witnesses examined by the prosecution. They admitted to have put signatures in Exts.P1 and P3 documents and also identified those when shown in the court, but, deposed to have no idea about the contents of those. Thus by deviating from the statements allegedly recorded from them Crl.A. No.568 of 2014 ## -:7:- by the investigating officer, they turned hostile to the prosecution. They were cross examined elaborately by the prosecution, but remained static in their hostile stand. PW5 is the preventive officer who was in charge of the Excise Inspector of Excise Range Office, Agali. PW1 produced the accused alongwith the properties seized and the seizure mahazar prepared at the spot. He being in charge of the Abkari Officer, registered the crime on the basis of the seized properties. Investigation was conducted by PW6, an officer superior to PW5. 7. This Court has no hesitation to hold that the case on hand is one wherein the prosecution has the strong support of the version of official witnesses examined as PW1 and PW2 which corroborate in all material particulars of it’s case. Their evidence that has been brought by the defence during cross examination, indisputably survived the test of credibility and therefore is totally reliable. Ext.P11 is the Certificate of Chemical Analysis which has been made available to the court by the prosecution and it is established therefrom that the contraband contained Ethyl alcohol of 22.58% and therefore, is a liquor prohibited by the Act to be possessed by the accused. Crl.A. No.568 of 2014 -:8:- There is nothing on record unlike the factual context in Suresh Babu’s case, the preventive officer of the Excise who has registered the crime was in charge of the Excise Inspector who is an Abkari officer at the relevant time. When he has been put in charge of the Excise Inspector, undoubtedly he is competent to exercise all powers of an Excise Inspector. It was when the accused and the contraband has been seized by him and while acting as an Excise Inspector that the crime was registered. Eventhough materials in particular are not available to reach a conclusion that immediate information was transpired to the superior officer by PW5, investigation being conducted by PW6, an officer superior to him. It can be gathered that information has gone from PW 1 to PW6. It cannot be said in the context that Section 38 of the Act has been violated by PW5. 8. This Court is hesitant to take a view that violation of Section 38 of the Act would vitiate trial for the reason that on such view being taken, remaining evidence would be of no use. In the case on hand, the entire admissible evidence on record will have to be overlooked or discarded. Non-transpiring immediate information about detection of violations of any Crl.A. No.568 of 2014 -:9:- provisions of the Act cannot also be said to have caused prejudice to the accused. For the foregoing reasons, this Court is destined to hold that the finding of guilt of the accused is not liable to be interfered with. 9. Now this Court has to consider the argument advanced by the learned counsel lastly that the sentence imposed being high is required to be modified and confined to the period of imprisonment already undergone by him. It was pointed out that the appellant was arrested on 23.12.2010 and was released on bail on 17.02.2011. Therefore, he had undergone imprisonment only for about two months. Therefore, the argument advanced cannot be accepted and the sentence cannot be confined to such a shorter period which can only be in total negation of the mandate of the provisions of the Act prescribing punishment. However, the petitioner being a man aged 61 years at present and totally lacking a criminal background, there is every justification for modifying the sentence imposed. 10. Simple imprisonment for one year and fine of Rs.1,00,000/- and simple imprisonment for three months in case Crl.A. No.568 of 2014 -:10:- of default was imposed by the court below. The contraband involved in the case is 20 litres of arrack. Previous conviction either for similar offences or for offences under any other enactments having not been noted in the impugned judgment, being the 1[st] offender also stands convicted for the first time in an Abkari case, this Court is inclined to modify the substantive sentence. Under Sub-section (2) of Section 8 of the Act, the punishment liable to be imposed is imprisonment for a term which may extent to ten years and with fine which shall not be less than Rs.1,00,000/-. Therefore, there is scope for discretion to be exercised in the matter of imposition of sentence. In the result, the Crl.Appeal is allowed in part. The substantive sentence stands imposed by the impugned judgment is modified and reduced to simple imprisonment for eight months. The period of two months’ imprisonment already undergone is liable to be set off under Section 428 Cr.P.C. The fine amount and the default sentence imposed by the trial court are maintained. Sd/- MARY JOSEPH, JUDGE JJ