Josekutty and Sureshkumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 3RD DAY OF MAY 2016/13TH VAISAKHA, 1938** **CRL.A.No. 1445 of 2011 (A)** **--------------------------AGAINST THE JUDGMENT IN SC 303/2009 of ADDL. DIST. COURT (ADHOC) III, PALAKKAD DATED 27-07-2011** **APPELLANTS/ACCUSED 1 & 2:** **--------------------------** **1. JOSEKUTTY, S/o.VARGHESE AGED 32 YEARS CHENGAMTHADATHIL HOUSE, THATTARATHETTA DESOM,, THODUPUZHA , IDUKKI.** **2. SURESHKUMAR,S/O.KANDAYI,AGED 31 YEARS, KALLANKADU HOUSE,VELLA ROAD, MANNUR VILLAGE,PALAKKAD.** **BY ADVS.SRI.P.VIJAYA BHANU (SR.)** **SRI.S.JIJI SRI.NIREESH MATHEW SRI.P.M.RAFIQ SRI.VIPIN NARAYAN** ## **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA GENERAL OF PROSECUTION, HIGH COURT OF KERALA,, ERNAKULAM.** **BY PUBLIC PROSECUTOR:SRI.ABHIJITH LESLIE** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.11.2015, THE COURT ON 03.05.2016 DELIVERED THE FOLLOWING:** ## **SUNIL THOMAS, J.** ================= **Crl.Appeal.No.1445 of 2011** ================= Dated this the 3[rd] day of May, 2016 ## **JUDGMENT** The appellants are the accused who stands convicted in S.C.No.303 of 2009 of the Court of Session, Palakkad for offence punishable under Section 55(a) of the Abkari Act. 2. According to the prosecution, PW1 who is the Assistant Excise Inspector of Cherpulassery range attached to a Mobile Excise Squad was on a regular patrol duty on 24.05.2007. At about 6.30p.m., they saw a TATA INDICA car TN-09-AN-7321 coming from Tamil Nadu side with great speed. On getting suspicious, it was asked to stop, which the driver did not heed and the vehicle sped away. The excise party chased it in a jeep and after covering about 1½ kms, the car capsized. Two persons who were travelling in the car were salvaged and they revealed the presence of rectified spirit inside the car. 18 cans of 35 litre capacity each containing 32 litres totalling to 576 litres were recovered. After initial formalities including drawing of samples, sealing and preparation of contemporaneous documents both the accused were arrested. Crime was registered and after Crl.A.1445/11 2 investigation, final report was laid. Both the accused faced trial before the Sessions Court, Palakkad. The prosecution let in oral and documentary evidence in the form of PWs.1 to 6 and Exts.P1 to P15. MOs1 and 2 were identified. On the side of the accused, Ext.D1 was marked. Court below, on an evaluation of all materials found both accused guilty, convicted and sentenced them to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,00,000/- with a default sentence of rigorous imprisonment for one year. Both the appellants have challenged this conviction and sentence in this appeal. 3. Heard and examined the records. 4. The prosecution essentially relied on the oral testimony of PWs.1 and 2 who were the Assistant Excise Inspector and the Preventive Officer of the excise department. Though PWs.3 and 4 were claimed to be independent witnesses and projected to prove the case of prosecution, they did not completely support the prosecution case. Both the above witnesses turned hostile. However, they admitted their signatures in Exts.P1 to P3 as well as the presence of them at the spot and having witnessed capsizing of the car. They did not support the prosecution case with respect to the recovery of contraband articles from the Crl.A.1445/11 3 accused. 5. PW1 in his detailed version deposed that on the date of incident, he was on patrol duty of Excise Mobile Patrol Unit-I and while so, saw the car coming with great speed. They were asked to stop and since they did not heed to the demand, they followed the vehicle. After travelling 1½ kms the vehicle capsized and two persons who were inside the vehicle were salvaged. They disclosed the presence of rectified spirit and the contraband articles were seized. 300ml each of samples were drawn from the contraband and filled in two bottles of 750ml each. The samples were consecutively numbered and accused were arrested. Contemporaneous documents were also prepared. The first accused was identified as the person who was driving the vehicle and second accused as the person who was travelling in the vehicle. He also deposed that arrest intimation was given to the near relatives. The arrest memos were marked as Exts.P1 and P2 and the telephone bill relating to the intimation given to the relatives were marked as Ext.P4. Ext.P3 was the contemporaneous mahazar prepared at the spot. Thereafter, the vehicle was towed to the excise office and the contraband, samples and the documents were handed over to PW5, the Excise Inspector Crl.A.1445/11 4 attached to the Chittoor range office. He gave meticulous details about the interception, sampling, sealing and preparation of contemporaneous documents, which were consistent with the details and meticulous recitals of Ext.P3 seizure mahazar. 6. PW2 the Preventive Officer also deposed in accordance with the version spoken by PW1 as well as the recitals in Ext.P3. PW5 was the Excise Inspector who registered the crime and prepared the crime and occurrence report as Ext.P5. The investigation was completed by PW6, the Circle Inspector. 7. The defence set up by the accused as is revealed from Section 313 Cr.P.C. questioning was that they were absolutely innocent of the crime and that on the date of incident, they had gone to Palakkad. They were travelling in a motor cycle and they lost the way. While so, a car came from the opposite side and was about to hit them. The vehicle moved towards another side and capsized. Three persons ran out from the vehicle and while the accused had gone near the car, the excise party reached the spot and believing them to be persons who were travelling in the car, both were arrested. The prosecution heavily relied on oral testimony of PW1 and the contemporaneous documents to prove the presence of the accused at the spot and the arrest along with Crl.A.1445/11 5 contraband. Even the defence set up by the accused itself indicates the presence of the accused at the spot. In fact, PWs.3 and 4, independent witnesses, who though turned hostile, have confirmed the presence of the accused at the spot. They have also mentioned about the capsizing of the car. Both the witnesses admitted their signatures in the contemporaneous documents. PW1 and 2 also deposed in accordance with the prosecution case. The totality of the above circumstances indicate the arrest of the accused at the spot. 8. It was contended by the learned counsel for the appellant that there was considerable delay in producing the accused before PW5 as well as in producing them before Court. The records reveal that the interception was on 24.05.2007 at 6.30p.m., The contraband articles were recovered, samples drawn and thereafter the vehicle had to be towed to the excise party. It appears that the accused were entrusted to PW5 on 25.05.2007 at 2.10a.m. Ext.P5 crime and occurrence report was also prepared at that time. There appears to be no delay in producing the accused before PW5. The accused and the relevant documents reached the Court on 25.05.2007 as is evident from the endorsement on Ext.P5. Ext.P6 property list dated 25.05.2007 indicates that it Crl.A.1445/11 6 reached the Court on the same day. Hence, there is nothing to show that there was any delay in producing the contraband and the accused before Court. 9. PWs.1 and 2 have given detailed version regarding the sampling and sealing. Ext.P3 seizure mahazar bears the sample seal. Ext.P7 forwarding note also bears the sample seal which was affixed on the relevant day. Ext.P13 is the FSL report which indicates that the samples reached the chemical analysis lab in a sealed condition and the seal tallied with the sample seal as well. Hence, there are sufficient materials to hold that the samples which were drawn at the spot reached the Court in tact, from where it was forwarded to the chemical analysis lab and reached there without any tampering. There is nothing to show any interpolation. Ext.P13 FSL report indicates that both the samples contained 92.88% of ethyl alcohol. Ext.P8 is the inventory regarding the 18 cans and 575.1 litre of spirit. Ext.P9 is the letter of the Assistant Excise Commissioner dated 16.06.2007 seeking disposal of the contraband. The order dated 08.08.2007 of the JFMC indicates that he had inspected the contraband and the photographs were taken. Ext.P10 are the photos and the negatives of the cans which were seized. Crl.A.1445/11 7 10. The above materials indicate that the crux of the allegation against the accused stands proved by the prosecution. However, learned counsel for the appellants vehemently contended that the case against the accused is not sustainable in the light of the fact that the inspection was effected, sampling done and the arrest was made by the officer who was not an authorized officer under the Abkari Act. Hence, it was contended that any prosecution based on an illegal seizure, sampling and arrest is illegal. It is revealed from the evidence that PW1 was the Assistant Excise Inspector attached to the Cherpulassery Excise range. He further admitted that in that office there was an abkari officer. The incident admittedly happened within the jurisdiction of Chittoor Excise range. According to PW1, he was authorized by his superior officer to conduct the inspection, as a member of the mobile party. However, absolutely no record was produced to show that he was duly authorized. 11. Learned counsel for the appellant relied on a notification dated 10[th] October 1985 with SRO No.1553 of 1985 to indicate that the Excise Inspector post is the promotion post of Assistant Excise Inspector. Relying on this, learned counsel Crl.A.1445/11 8 canvassed the position that both are different officers and duties of assistant excise inspector cannot be considered as equivalent to an Excise Inspector. Learned counsel for the appellants relied on the various decisions reported in **Subrahmaniyan v. State of Kerala (2010(2) KLT 470), Parathi Sasidharan v. State of Kerala (2012 KHC 340) and Malu v. State of Kerala (Laws (KER)-2014-10-139)** to contend that an Assistant Excise Inspector was not a competent officer under the Abkari Act. In Subrahmaniyan's case, this Court held that in the absence of specific conferment of powers, an Assistant Excise Inspector cannot be treated as a competent officer as contemplated under the Abkari Act. The court held that in that case, report under section 50 was also laid by that officer. Hence, it was held that court can take cognizance only on a report filed by the competent officer. The court relied on the earlier Full Bench decision on this point in **Abdul Rehman v. State of Kerala(1995 (1) KLT 234 (FB))** affirming the decisions in **Varkey v. State of Kerala (1993 (1) KLT 72)** and **Prabhakaran v. Excise Circle Inspector (1992 (2) KLT 860)** . In Parathi Sasidharan's case (supra) the main search and seizure were conducted by the Assistant Excise Inspector. It was held that since the illegality Crl.A.1445/11 9 annexed to the main parts will go to the root of matter, trial on the basis of such report is vitiated. The law was followed in Malu's case (supra). 12. The above decisions uniformly indicate that the Excise Inspectors were authorized officers. The Assistant Excise Inspectors were conferred with the power of Abkari officer vide notification dated 08.05.2009 SRO No.361 of 2009. It clearly shows that till 08.05.2009, Assistant Excise Inspectors were not conferred with the jurisdiction of abkari officers. The above decisions consistently hold the position that prior to 08.05.2009, Assistant Excise Inspectors were not empowered to be the authorised officers under the abkari Act. In the case at hand, the interception was on 24.05.2007. Since the substantial part of search, seizure, inspection, preparation of contemporaneous documents and arrest were effected by an officer who was not authorized officer, the conviction is not sustainable. 13. Though the learned Public Prosecutor tried to salvage the position relying on the Division Bench decision **Ravi v. State of Kerala (2011(3) KLT 353)** paragraph 7 and 8, they relate to a case wherein the person was holding the charge of Excise Inspector though, in fact he was in a rank lower than that of Excise Crl.A.1445/11 10 Inspector. The above decision has no application to the facts of this case. Having regard to the facts of this case, it is evident that the substantial part of the initial formalities were done by the officer who was not authorized officer under the Abkari Act. Necessarily, the conviction is not sustainable on the basis of search, seizure, arrest and preparation of mahazar. The conviction arrived at by the court below, hence, is not legally sustainable and is liable to be set aside. In the result, the appeal is allowed. The conviction and the sentence imposed by the court below is set aside and the accused are set at liberty. Their bail bond stand discharged. Sd/- ## **SUNIL THOMAS Judge** Sbna/ True Copy P A to Judge