Komparakkaran Saleesh S/O Varghese; Moozhiyil Sijilan S/O Velayudhan; Mancheri Veetil Sunil S/O Ramakrishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942** ## **CRL.A.No.809 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 1087/2004 OF ADDITIONAL SESSIONS JUDGE(ADHOC)-I, THALASSERY** ## **AGAINST THE ORDER/JUDGMENT IN CP 137/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,MATTANNUR** ## **APPELLANTS:** **1 KOMPARAKKARAN SALEESH S/O.VARGHESE, AGED 30 YEARS, CLEANER, PERAMPARA AMSOM,, POTTA DESOM, MUKUNDAPURAM TALUK,, TRISSUR DISTRICT.** **2 MOOZHIYIL SIJILAN S/O.VELAYUDHAN, AGED 27 YEARS,, AGRICULTURIST, MELOOR AMSOM DESOM,, MUKUNDAPURAM TALUK,, THRISSUR DISTRICT.** **3 MANCHERI VEETIL SUNIL S/O.RAMAKRISHNAN, AGED 31 YEARS,, PETTIKADA MERCHANT, KORATTY AMSOM,, MUKUNDAPURAM TALUK,, THRISSUR DISTRICT.** **BY ADV. SRI.S.NIRMAL KUMAR** ## **RESPONDENT:** ## **STATE OF KERALA** **MATTANNUR EXCISE RANGE,, (CRIME NO.17/1999) REP. BY, PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.D.CHANDRASENAN, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.809 OF 2006 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## CRL.A.No.809 OF 2006 ------------------------------- ## **JUDGMENT** Dated this the 23rd day of February 2021 Appellants are accused 1 to 3 in S.C.No.1087/2004, on the file of the Additional Sessions Judge (Adhoc-I), Thalassery. The above case is charge sheeted against the appellants and another alleging the offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 1.10.1999, at about 6.30am, while CW1 and party were checking vehicles near Excise Check Post at Kootupuzha a miniA bus having registration No.KL-8E-8744 driven by the 1[st] accused and carrying accused 2 and 3 came there and when the vehicle was searched 195 cases of Indian made foreign liquor were found concealed in the bus. According to the prosecution altogether 1755 litres of Indian made foreign liquor was seized from CRL.A.No.809 OF 2006 3 the vehicle and thus they committed the offence. 3. Accused Nos.1 to 3 faced trial in this case. The case against 4[th] accused was splited by the committed court itself. 4. To substantiate the case, the prosecution examined PW1 to PW7. Exts.P1 to P12 are also marked on the side of the prosecution. 5. After going through the evidence and documents, the trial Court found that the accused committed the offence punishable under Section 55(a) of the Abkari Act. The accused were sentenced to undergo simple imprisonment for four years each and to pay a fine of Rs.1,00,000/- each. In default of payment of fine, the accused were directed to undergo simple imprisonment for six months each. Aggrieved by the conviction and sentence, this Criminal Appeal is filed by the accused nos.1 to 3 in this case. 6. Heard the learned counsel for the appellants and the learned Public Prosecutor. CRL.A.No.809 OF 2006 4 7. The counsel for the appellants submitted that, the entire prosecution against the appellants in this case is vitiated for the simple reason that an unauthorized person registered the case. The counsel submitted that CW1 is the Preventive Officer. He himself registered the case. That will go to the root of the case. The counsel also submitted that there is a long delay of 16 days in producing the contraband before the court. The counsel also submitted that the property list is also not produced before the court during trial and that is fatal to the prosecution. 8. The learned Public Prosecutor submitted that, based on the oral and documentary evidence, the offence against the accused is proved, and there is nothing to interfere with the conviction and sentence imposed in this case. 9. The point for consideration is that, whether the appellants/accused committed the offence under Section 55(a) of the Abkari Act. CRL.A.No.809 OF 2006 5 10. The Preventive Officer registered the crime as evident from Ext.P5. Ext.P5 is the crime and occurrence report. A perusal of the same, it can be seen that it is registered by the Preventive Officer who is alleged to be in charge of the Excise Inspector, Mattannur. 11. Admittedly, the Preventive Officer registered the case. According to him, he was in charge of Excise Inspector on that day. But when the Abkari Act authorizes certain person to do certain activities, simply because the Preventive Officer is in charge of the Excise Inspector, he can not register a case. This point is considered by this Court in judgment dated 21.12.2015 in Crl.Appeal.No.300/2006. The relevant portion of the judgment is extracted hereunder; “9. After having heard learned counsel for the appellant and the learned Public Prosecutor and having perused the records and provisions of the Act, there seems to be some force in the submission of the learned counsel for the appellant. To understand the position as contended by the CRL.A.No.809 OF 2006 6 learned counsel for the appellant, reference to the provisions is required. First among them being the definition of 'Abkari Officer' as contained in Section 3(2) of the Abkari Act which reads as follows:- “3(2) Abkari Officer:- “Abkari Officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5.” Section 3(6) defines 'Abkari Inspector' as follows: “3(6) Abkari Inspector.- “Abkari Inspector” means an officer appointed under Section 4, clause (d).” ## Section 4 reads as follows:- - “4. The Government may, by notification in the Gazette:- - (a) The Government may appoint an officer to control the administration of the Abkari Department:- Appoint an officer, who shall be styled the commissioner of Excise and who shall, subject to the general control of the Government have Control of the administration of the Abkari Department and of the collection of the Abkari Revenue or of both; - (b) May appoint any person other than the Commissioner to perform all or any of his duties:- Appoint any person other than the Commissioner of Excise to exercise all or any of the powers and to perform all or any of the CRL.A.No.809 OF 2006 7 duties of the Commissioner of Excise, subject to the control of the Government. - (c) May withdraw Abkari powers from Commissioner or other officer appointed under clause (a) or clause (b):- Withdraw from the Commissioner or other officer appointed under clause (a) or clause (b) any or all of his powers in respect of the Abkari Revenue; - (d) May appoint officer to take action under Sections 40 to 53:- Appoint officers to perform the acts and duties mentioned in Sections 40 to 53 inclusive of this Act; - (e) And subordinate officers:- Appoint subordinate officers of such classes and with such designations, powers and duties under this Act as the Government may think fit. - (f) May appoint any officer of Government or persons to act as above:- Order that all or any of the powers and duties assigned to any officer under clauses (d) and (e) of this section shall be exercised and performed by any Officer of Government or any person. - (g) Delegate to any Abkari Officer all or any of their powers under this Act.” It may be noticed at once that Abkari Inspector means an officer appointed under Section 4 clause (d). It means those officers mentioned in Sections 40 to 53 inclusive of the Act. So that Abkari officers empowered to act under Sections 40 to 53 alone can qualify as Abkari Inspector. Section 5 reads as follows: “5. The Government may, from time to time, make rules:- (1) Prescribing the powers and duties under this Act to be exercised and CRL.A.No.809 OF 2006 8 performed by Abkari Officers of the several classes; and (2) regulating the delegation by the Government or by the Commissioner of Excise of any powers conferred by this Act or exercised in respect of Abkari Revenue under any law for the time being in force.” The notification issued in pursuance to the above provision, S.R.O. 234/1967 which was in force as on the date of incident in this case contained entry No.12 which has already been quoted. One may look into entry No.8 in the above notification which reads as follows: 8. All officers of the Excise Department not below the rank Within the areas of Excise Inspectors to perform for which they the acts and duties mentioned are appointed. in Sections 40 to 53 inclusive of the Act. Therefore, the distinction between entries 8 and 12 is conspicuous. Entry No.8 in the notification says that all officers of the Excise Department not below the rank of Excise Inspectors can perform the acts and duties mentioned in Sections 40 to 53 of the Act. Entry No.12 says that Preventive Officer can only exercise powers for the purposes of Sections 31,32, 34, 35, 38, 39, 53 and 59. Going by the scheme of the Act, Preventive Officer can take such steps so as to prevent the commission of crime, even arrest the accused without warrant. Their power ceases when they produce the articles and the accused before the Excise Inspector and thereafter they cannot proceed to exercise powers under Sections 40 to 53 of the Act.” CRL.A.No.809 OF 2006 9 12. The above judgment squarely cover the point raised by the appellant. Section 40 of the Abkari Act says about the procedure on arrest and seizure. A Preventive Officer is authorized as per the Abkari Act to arrest and seize contraband articles. But there is no authorization to the Preventive Officer to do the activities prescribed under Section 40 of the Abkari Act. The Preventive Officer could not assume charge simply because the excise officer is not present in the office. Without authorization he cannot register a case. If an unauthorized person register a case, it will go to the root of the case. Hence, I think the appellant in this case is entitled to the benefit of doubt. 13. Moreover, there is a long delay in producing the contraband articles before the court. It is stated in the impugned judgment itself that the properties were produced before the court after 16 days. That is fatal to the prosecution. If the delay in producing the article before the court is not explained the entire prosecution CRL.A.No.809 OF 2006 10 is vitiated for that simple reason. 14. The seizure of the contraband in this case was on 1.10.1999. The sample reached the court only on 16.10.1999. There is no explanation from the part of the prosecution regarding the delay in producing the sample before the court. 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) 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 CRL.A.No.809 OF 2006 11 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.” 15. In the light of the above discussions, I think the appellants are entitled to the benefit of doubt. Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellants/accused as per the judgment dated 4/4/2006 in S.C. No.1087/2004, on the file of the Additional Sessions Judge (Adhoc-I), Thalassery is set aside. The appellants are set at liberty. The bail bond, if any, executed by the appellants, is cancelled. **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** ska