John @ Podimon Cardose v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 12[TH] DAY OF AUGUST 2022 / 21ST SRAVANA, 1944 ``` ``` CRL.A NO. 1771 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 522/2005 OF ADDITIONAL SESSIONS ``` ``` COURT (ADHOC)-II, KOLLAM CP 1/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, ``` ## **`KARUNAGAPPALLY`** ## **`APPELLANT/ACCUSED:`** ``` JOHN @ PODIMON CARDOSE, THAYIL KIZHAKKATHIL VEETTIL, CLAPPANA THEKKU MURI, CLAPPANA VILLAGE,, KARUNAGAPPALLY, KOLLAM. BY ADV SRI.C.RAJENDRAN ``` ## **`RESPONDENT/COMPLAINANT:`** ## **`STATE OF KERALA`** ``` SUB INSPECTOR OF POLICE, KARUNAGAPPALLY, EXCISE RANGE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`BY ADV PUBLIC PROSECUTOR`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1771 OF 2008 ``` ``` 2 ``` ## **P.V.KUNHIKRISHNAN, J. =================== Crl.A. No.1771 of 2008** **=================== Dated this the 12[th] day of August, 2022** ## **J U D G M E N T** Appellant is the 1[st] accused in S. C. No. 522/2005 on the file of the Additional District and Sessions Judge, (Adhoc) II, Kollam. The above case is registered against the appellant alleging offence punishable under Sections 8(1) & (2) of the Kerala Abkari Act. 2. The prosecution case is that, the Preventive Officer of Excise Range, Karungapally was on patrol duty on 22.07.2002 and he was proceeding along with the Panchayat road from Vazhamukku towards west. When he reached near the house of one Mr. Yeosdharan he saw the 1[st] accused proceeding along the road with a bag. When he was intercepted on suspicion and the bag was searched it was found containing a can of 10 litre capacity in which 5 litres arrack was seized. Hence, it is alleged that the accused committed the offence. ``` CRL.A NO. 1771 OF 2008 ``` ``` 3 ``` 3. To substantiate the case, prosecution examined PW1 to PW5. Exhibit P1 to P8 are the exhibits marked on the side of the prosecution. MO1 and MO2 are the material object. 4. After going through the evidence and documents, the trial court found that, the accused committed the offence under Sectiond 8(1) & (2) of the Kerala Abkari Act. The accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused is directed to undergo simple imprisonment for a further period of six months. The 2[nd] accused is acquitted. Aggrieved by the conviction and sentence, the 1[st] accused is filed this Criminal Appeal. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant submitted that there is a delay of two days in producing the contraband articles before the Court and there is no explanation for the same. The learned counsel also submitted that, the case is ``` CRL.A NO. 1771 OF 2008 ``` ``` 4 ``` registered by an Assistant Excise Inspector and he is not an authorized Officer to register the case as on the date of detection. Moreover, the forwarding note is also not produced. 7. The learned Public Prosecutor on the other hand submitted that, there is oral and documentary evidence to prove the case and there is nothing to interfere with the conviction and sentence imposed on the appellant. 8. This Court considered the contention of the appellant and the learned Public Prosecutor. Admittedly, the forwarding note is not marked in this case. The non production of forwarding note is fatal to the prosecution, because it is the fundamental duty of the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the analyst. 9. This Court in several decisions considered the relevancy of the forwarding note. Some of the decisions are **Gireesh @ Manoj v. State of Kerala (2019(4) KLT 79), Vijayan @ Pattalam Vijayan and another v. State of Kerala (2018 (2) KHC 814) and Prakasan and another** ``` CRL.A NO. 1771 OF 2008 ``` ``` 5 ``` ## **v. State of Kerala (2016 KHC 96)** . The relevant portion of the judgment in **Gireesh's case** (supra) extracted hereunder: “14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by PW5 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition **(See Prakasan v. State of Kerala (2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16))** .” 10. Moreover, there is a delay of 2 days in producing the contraband before the Court. The detection was on 22.07.2002 and the contraband were produced only on 24.07.2002. There is no explanation for the delay. The non explanation of the delay in producing the contraband is fatal to the prosecution. 11. This point is also considered by this Court in **Sukumaran v. State of Kerala (2019 (3) KLT 920), Ravi v. State-Sub Inspector of Police, Meppadi (2018 (5) KHC 352) and Vikraman v. State of Kerala (2018 (1)** ``` CRL.A NO. 1771 OF 2008 ``` ``` 6 ``` ## **KLT 822).** Relevant portion of the judgment in **Ravi's case** ## (supra) is extracted hereunder: “8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt. 9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note.” 12. Moreover, the case is registered by the Assistant Excise Inspector. The Assistant Excise Inspector is not a authorized person to register the case. 13. The Assistant Excise Inspector is not authorised to conduct search and seizure as per the Abkari Act till 8.5.2009. Admittedly in this case the seizure was on 22.07.2002. In **Bhaskaran v. State of Kerala [2018 (4) KLT 894] and in Subrahmaniyan v. State of Kerala [2010 (2) KLT 470] and in Sasidharan v. State of** ``` CRL.A NO. 1771 OF 2008 ``` ``` 7 ``` ## **Kerala [2012 (2) KLT 392]** this Court considered this point. 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 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. ``` CRL.A NO. 1771 OF 2008 ``` ``` 8 ``` 14. In this case, the offence was 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.” ## 14. 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 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 ``` CRL.A NO. 1771 OF 2008 ``` ``` 9 ``` 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 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 ``` CRL.A NO. 1771 OF 2008 ``` ``` 10 ``` 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.” 15. In the light of the above discussions, I think the appellant in this case is entitled to the benefit of doubt. Therefore, this criminal appeal is allowed. The conviction and sentence imposed on the appellant/1[st] accused as per judgment dated 05.08.2008 in S.C. No. 522/2005 on the file of Additional District and Sessions Judge, (Adhoc) II, Kollam is set aside. The appellant/1[st] accused is set at liberty. The bail bond, if any, executed by the appellant/1[st] accused, is canceled. **Sd/P.V.KUNHIKRISHNAN, JUDGE** LU