K.J. Job v. State of Kerala; O.M. Thomas v. State of Kerala; P.A. Jibi v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 1[ST] DAY OF JULY 2022 / 10TH ASHADHA, 1944 CRL.A NO. 2071 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 815/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM** ## **APPELLANT/ACCUSED NO.2:** O.M. THOMAS,AGED 33 YEARS, S/O MATHACHAN, OALATTUPURATHUVEETTIL HOUSE, PANJIPPALLA DESOM, PUTHENVELIKKARA, PARAVUR TALUK (CUSTODY). BY ADV M.G.KARTHIKEYAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REP.BY THE EXCISE CIRCLE INSPECTOR, EXCISE ENFORCEMENT AND ANTINARCOTIC SPECIAL SQUAD, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT.REKHA.S -SR.GP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.07.2022, ALONG WITH CRL.A.2045/2008, 2075/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A Nos.2045, 2071 & 2075 of 2008 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 1[ST] DAY OF JULY 2022 / 10TH ASHADHA, 1944 CRL.A NO. 2045 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 815/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM** ## **APPELLANT/ACCUSED NO.1:** K.J.JOB, AGED 29 YEARS, S/O. JOSEPH, KUDIYILICKAL HOUSE, PANJIPPALLA DESOM, PUTHENVELIKKARA, PARAVUR TALUK (CUSTODY) BY ADV SRI.S.A.ANAND ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA EXCISE CIRCLE INSPECTOR, EXCISE ENFORCEMENT AND ANTINARCOTIC SPECIAL SQUAD, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT.REKHA.S -SR.GP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.07.2022, ALONG WITH CRL.A.2071/2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A Nos.2045, 2071 & 2075 of 2008 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU FRIDAY, THE 1[ST] DAY OF JULY 2022 / 10TH ASHADHA, 1944 CRL.A NO. 2075 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 815/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM** ## **APPELLANT/ACCUSED NO.3:** P.A.JIBI, AGED 40 YEARS, S/O.AUGUSTINE, PULICKAL HOUSE,, PANJIPPALA DESOM, PUTHENVELIKKARA,PARAVUR TALUK (CUSTODY). BY ADV SRI.NIREESH MATHEW ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, EXCISE CIRCLE INSPECTOR, EXCISE ENFORCEMENT AND ANTINARCOTIC SPECIAL SQUAD, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT.REKHA.S -SR.GP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.07.2022, ALONG WITH CRL.A.2071/2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A Nos.2045, 2071 & 2075 of 2008 4 ## K.BABU, J. -------------------------------------Criminal Appeal Nos.2045, 2071 & 2075 of 2008 --------------------------------------Dated this the 1[st] day of July, 2022 ## JUDGMENT These three appeals arise from the judgment dated 13.08.2008 passed by the Additional Sessions Court (Adhoc-II), Ernakulam in S.C.No.815/2005. Accused Nos.1 to 3 are the appellants. Accused No.1 is the appellant in Crl.A No.2045/2008. The appellant in Crl.A No.2071/2008 is accused No.2. Accused No.3 is the appellant in Crl.A No.2075/2008. 2. The Trial Court convicted accused Nos.1 and 2 under section 55(a) of the Abkari Act and accused No.3 under section 58 of the Abkari Act. On 30.09.2005, the Excise team led by the Excise Inspector, Excise Intelligence and Investigation Bureau, Ernakulam (PW5) got reliable information that a large quantity of spirit was stored in a building near the way bridge of SRX IMPEX Company, an industrial area at Erumathala. PW5 rushed to the place of occurrence at 1.00 p.m., on 30.09.2005. The Excise team led by PW5 Crl.A Nos.2045, 2071 & 2075 of 2008 5 found a Jeep bearing registration No.KL7-AV-8955 parked on the premises of the building. When PW5 approached the Jeep one person, who was seated in the driver's seat, fled away from there. PW5 searched the Jeep and found 8 white plastic cans, each containing 35 litres of spirit, kept at the rear side of the Jeep. PW5 immediately gave intimation to the Assistant Excise Commissioner, Ernakulam. As directed by the Assistant Excise Commissioner, Ernakulam an Excise team led by the Excise Circle Inspector, Aluva (PW3) proceeded to the site and searched the premises. During the course of search in the nearby building owned by accused No.4 and occupied by accused No.3, 437 cans, each containing 33 litres of spirit were recovered. The Excise team also recovered certain empty plastic cans. Altogether the Excise party recovered 14850 litres of spirit and 5.22 litres of coloured liquor from the building. PW3 collected samples in 458 bottles from the scene of occurrence from the spirit recovered. PW3 sealed the bottles containing the sample at the scene of occurrence. A crime was registered as Crime No.18/2005 of Aluva Excise Range. The Circle Inspector of Excise, Excise Enforcement and Anti Narcotic Special Squad, Crl.A Nos.2045, 2071 & 2075 of 2008 6 Ernakulam (PW16) conducted investigation and submitted final report alleging offences punishable under Sections 55(a), 55(i) and 58 of the Abkari Act against accused Nos.1 to 3 and under Section 64A of the Abkari Act against accused No.4. 3. The final report was submitted before the Judicial First Class Magistrate Court-I, Aluva. The learned Magistrate committed the case to the Sessions Court, Ernakulam from where it was made over to the Trial Court. Accused Nos.1 to 4 appeared before the Trial Court. On their appearance respective charges were framed against them. The accused pleaded not guilty and therefore, they came to be tried by the Trial Court. 4. The prosecution examined PWs 1 to 16 and proved Exts.P1 to P28 and MOs 1 to 7. 5. After the closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. On the side of Crl.A Nos.2045, 2071 & 2075 of 2008 7 the defence, DWs 1 to 3 were examined and Exts.D1 & D2 were marked. 6. At the close of the trial, the Trial Court found accused Nos.1 and 2 guilty under Section 55(a), accused No.3 under Section 58 and accused No.4 under Section 64A of the Abkari Act. Accused Nos.1 and 2 were sentenced to undergo rigorous imprisonment for a term of two years each and pay a fine of Rs.1 Lakh each. Accused No.3 was sentenced under Sec.58 of the Abkari Act to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh. Accused No.4 was sentenced to pay a fine of Rs.1 Lakh under Section 64A of the Abkari Act. 7. Heard Sri. Nireesh Mathew, the learned counsel appearing for the appellants/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellants challenged the impugned judgment of conviction and sentence on the following grounds: - (i) The prosecution failed to establish the genuineness of the articles, including the sample, Crl.A Nos.2045, 2071 & 2075 of 2008 8 produced before the Court and forwarded to the Chemical Examiner's laboratory. - (ii) The prosecution case against the appellants stands vitiated in view of the fact that an incompetent officer conducted the investigation and submitted final report. - (iii) As the prosecution has not given explanation as to how the residue of the spirit seized from the place of occurrence was disposed, the very seizure itself is doubtful. 9. The seizure was effected by PW3, the then Excise Circle Inspector, Excise Circle office, Aluva. He had prepared Ext.P3 seizure mahazar to evidence seizure of the contraband substance. 10. The learned counsel for the appellants has taken me to the seizure mahazar. The learned counsel contended that the detecting officer had not narrated the nature and description of the seal stated to have been affixed on the bottles containing the sample in Ext.P3 seizure mahazar. It is submitted that the nature and description of the seal are to be described in the seizure Crl.A Nos.2045, 2071 & 2075 of 2008 9 mahazar to ensure the genuineness of the sample. There is nothing to show that the specimen of the seal was produced before the Court at the time of production of the properties, including the sample. 11. Relying on Bhaskaran K. v. State of Kerala and another (2020 KHC 5296) and Krishnadas v. State of Kerala [2019 KHC 191], the learned counsel contended that non-mention of the nature and description of the seal in Ext.P3 mahazar is fatal to the prosecution. In Bhaskaran K. v. State of Kerala and another (2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 12. The learned counsel for the appellants further contended that the prosecution has also failed to rule out the possibility of the sample being changed or tampered with, as the officials who handled the sample during its transit from the Court to the laboratory were not examined. The bottles containing the sample 10 Crl.A Nos.2045, 2071 & 2075 of 2008 were produced before the Court on 01.10.2005. The sample remained in the Court till 04.10.2005 in the custody of the property clerk. The samples were delivered in the laboratory through Sri.K.J.Benny, an Excise Guard. Both those officials were not examined by the prosecution to rule out the possibility of the samples being changed or tampered with. The inevitable consequence of the non-examination of these officials is that the prosecution has failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 13. The learned counsel for the appellants further contended that the prosecution stands vitiated in view of the fact that an incompetent officer conducted the investigation and submitted final report. The learned counsel for the appellants relied on SRO.No.234/1967, a Government Notification issued under Section 4 of the Abkari Act, conferring powers to various officers under the Abkari Act. The Government notification referred to above had authorised various categories of Excise officials to discharge the Crl.A Nos.2045, 2071 & 2075 of 2008 11 various functions under the Kerala Abkari Act as Abkari officers. By the said notification only Abkari officials attached to Excise Range offices or Circles, or such officers in charge of distilleries, warehouses, wineries etc., were given powers as Abkari officers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Excise Officials of special wings or squads like Excise Enforcement and Anti Narcotic Special Squad, or the Excise Intelligence Squad were not given such powers under the 1967 Government Notification. In 2009, Government of Kerala issued another notification, SRO.No.361/2009 dated 08.05.2009, in supersession of the 1967 notification by which special categories like Excise officials of the Excise Enforcement and Anti Narcotic Special Squad and Excise Intelligence Squad were given powers of Abkari officers under the Abkari Act to exercise powers under Sections 31, 32, 34, 35, 38, 39 and 53 of the Abkari Act. The learned counsel brought to my notice that even as per the 2009 notification, the Excise officials in the special wing were not given powers of investigation and the power to submit final report. Crl.A Nos.2045, 2071 & 2075 of 2008 12 14. In the present case, the alleged offence occurred on 30.09.2005 and investigation commenced with effect from 01.10.2005 and final report was submitted on 29.11.2005. The learned counsel relied on a series of precedents to substantiate his contention that PW16, the Circle Inspector of Excise had no power to conduct investigation and submit final report. 15. The learned counsel relied on Balachandran v. State of Kerala [2020 (3) KHC 697] and Velutha v. Sub Inspector of Police, S.Bathery Police Station and Another [2016 (4) KHC 206] in support of his contentions. While considering the scope of S.R.O No.234/1967 in the context of the power of an officer in the Special Squad to conduct investigation and submit final report, this Court in ## Balachandran 's case (supra) held thus: “14. S.R.O. No. 234/67, which is extracted above, will show that the investigation and final report under Section 50 of the Abkari Act can be submitted by all the Officers of the Excise department, not below the rank of Excise Inspectors within the areas for which they are appointed. 'Abkari Officer' is defined as per Section 3(2) of the Abkari Act which is extracted hereunder: ## "Abkari Officer: means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5." S.R.O. No. 234/67 was issued by the Government as per Section 4 of the Kerala Abkari Act. As per the above Crl.A Nos.2045, 2071 & 2075 of 2008 13 notification, all officers of the Excise Department not below the rank of Excise Inspector are authorized to perform the acts and duties mentioned in Sections 40 to 53 within the area for which they are appointed. Similarly, the Commissioner of Excise, the Joint Commissioner of Excise, Deputy Commissioners of Excise and all Assistant Commissioners of Excise to be Abkari officers under their respective denominations for the purpose of Sections 31, 32, 34, 35, 38, 39, 53, 59, 67 and 67A of the Abkari Act and to discharge of the duties conferred and imposed on Abkari officers in the Sections aforesaid. The Commissioner of Excise and the Joint Commissioner of Excise are having jurisdiction throughout the State. But, Deputy Commissioners of Excise and the Assistant Commissioners of Excise have jurisdiction only within the area for which they are appointed. Circle Inspectors of Excise, Excise Inspectors, attached to the circle and Excise Inspectors in charge of Ranges will be Abkari officers under their respective denominations for the purpose of Sections 31, 32, 34, 35, 38, 39, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari officers in the Sections aforesaid within their respective jurisdiction. Similarly, clause 11, 12 and 13 of SRO No. 234/67 give powers to different officers within their respective jurisdiction or within the area for which they are appointed. 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. Of course, 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. 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 Crl.A Nos.2045, 2071 & 2075 of 2008 14 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.” 16. In Velutha's case, this Court had considered a fact situation in which a part of the investigation was conducted by an incompetent officer. In Velutha, this Court held that as part of the investigation was conducted by an incompetent officer, the report of the investigation could not be used to enter into a conviction against the accused. 17. The necessary conclusion is that PW16 was not empowered to conduct investigation in the matter and submit final report. The conviction entered against the accused must fail on that ground alone. 18. The learned counsel further contended that there is yet another irregularity relating to the non-compliance of the provisions of Section 53A of the Abkari Act. In the present case, Crl.A Nos.2045, 2071 & 2075 of 2008 15 14,850 litres of spirit was seized. Exhibit P7 list of properties shows that the bulk quantity of spirit, including the bottles containing the sample, were produced before the Court on 01.10.2005. But on the same day the properties, including the sample, were returned to the Excise Inspector concerned for keeping in his safe custody. 19. During the course of trial, the residue of the spirit was not produced before the Court and marked. No explanation was offered by the prosecution as to what happened to the residue of the spirit recovered from the place of occurrence. There is no material to show that the provisions of Section 53A was complied with in the disposal of the spirit. The prosecution has also not given evidence as to whether the bulk quantity of spirit produced before the Court was verified by the official concerned of the Court. In the absence of any evidence to show that the bulk quantity of the spirit recovered from the place of occurrence was disposed of in compliance of the provisions of Section 53A and the same was not produced before the Court during the trial a doubt arises as to the genuineness of the alleged seizure effected by PW3. This view is Crl.A Nos.2045, 2071 & 2075 of 2008 16 fortified by the decision of this Court in Appu v. State of Kerala [2016 (5) KHC 310] and Balakrishna Rai v. State of Kerala [2020 (3) KHC 286]. 20. The upshot of the above discussion is that the prosecution failed to show that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory leading to the consequence that Ext.P28 Certificate of Chemical Analysis has no evidentiary value. This view is supported by the decision of the Apex Court in Vijay Pandey v. State of U.P (AIR 2019 SC 3569). 21. The resultant conclusion is that the prosecution failed to connect the accused with the contraband substances allegedly seized and subjected to analysis in the Chemical Examiner's Laboratory. In addition to that, since an incompetent officer conducted the investigation and submitted final report, the prosecution failed on that ground also. The very seizure allegedly effected by PW3 also becomes doubtful in view of the nonexplanation regarding the disposal of residue of the spirit. Therefore, the conviction entered and sentence passed against the Crl.A Nos.2045, 2071 & 2075 of 2008 17 accused cannot be sustained. They are not guilty of the offences alleged. They are acquitted of the offences alleged. They are set at liberty. The appeals are allowed as above. Sd/K.BABU, JUDGE KAS