KUNCHU GUPTHAN vs STATE OF KERALA

Crl.A. No.1689 of 2006 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942** **CRL.A.No.1689 OF 2006** **AGAINST THE JUDGMENT IN SC 327/2005 DATED 04-08-2006 OF ADDITIONAL DISTRICT COURT (ADHOC) III, PALAKKAD** ## **APPELLANT:** **KUNCHU GUPTHAN AGED 58 YEARS S/O. KUTTAMOOTHAN, VAZHAKKAD HOUSE,, THACHANATTUKARA VILLAGE, MANNARKKAD.** **BY ADVS. SRI.PHILIP T.VARGHESE SRI.P.M.RAFIQ** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR** ## **SRI.K.B.UDAYAKUMAR,SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A. No.1689 of 2006 2 ## **P.V.KUNHIKRISHNAN, J. =================== Crl.A. No.1689 of 2006 =================== Dated this the 2[nd ] day of December, 2020** ## **J U D G M E N T** This appeal is filed against the judgment dated 04.08.2006 in S. C. No. 327/2005 on the file of Additional Sessions Judge, Fast Track Court-III, Palakkad. The above case is charge sheeted against the appellant alleging offences punishable under Section 8 (1) and (2) of the Kerala Abkari Act. 2. The prosecution case is that, the circle inspector of Excise, Excise Enforcement and Anti Narcotic Special Squad, Palakkad with Excise party was on patrol duty on 27.06.2001. On that day at 6.00 p.m., when the Excise party reached in front of the house of one Ali, S/o Muhammed, they found the accused coming in the opposite direction holding a can in his hand. On seeing the Crl.A. No.1689 of 2006 3 excise party, the accused tried to go back. On suspicion, the excise party stopped the accused and verified the contents of the can in the presence of the witnesses. It is the case of prosecution that, the circle Inspector found about 4 liters of illicit arrack in that can. Therefore, it is alleged that, the accused committed the offence. After taking sample the same was produced before the Excise office and PW5 Preventive Officer registered the case. 3. To substantiate the case, the prosecution examined PW1 to PW6. Exts. P1 to P5 are the exhibits marked on the side of the prosecution. MO1 is the material objects. 4. After going through the evidence and documents, the trial court found that, the accused committed the offences under Section 8 (1) and (2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/-. In default of payment of fine the accused is directed to undergo rigorous imprisonment for a period of Crl.A. No.1689 of 2006 4 six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant submitted that, the forwarding note is not marked in this case. The learned counsel for the appellant submitted that, the forwarding note is a material document to be produced by the prosecution to prove the offence in abkari cases. The learned counsel submitted that, the prosecution has to prove all the links starting from the seizure of the property till it reaches in the hands of the analyst. To prove the same, the forwarding note is a fatal document, as far as the prosecution is concerned. If that is not proved, the prosecution is not sustainable. The learned counsel also submitted that, the Preventive Officer registered the case. The learned counsel submitted that, he is not an authorized person to register abkari case as per the Abkari Act. The learned submitted that, eventhough the Crl.A. No.1689 of 2006 5 Preventive Officer can arrest and seize the contraband articles, he has no jurisdiction to register abkari case as per the Abkari Act. The learned counsel submitted that, that will go to the root of the case. Therefore, the prosecution is not maintainable. 7. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the case. The learned Public Prosecutor submitted that, the evidence of PW1 and PW2 coupled with Exts. P1 to P5, the prosecution proved the offence against the appellant. 8. The point for consideration in this appeal is whether the appellant committed the offence under Section 8 (1) and (2) of the Kerala Abkari Act. 9. Admittedly, the forwarding note is not marked in this case. The forwarding note is an important document to be marked by the prosecution in abkari cases. In abkari cases, forwarding note is important because the specimen seal used by the detecting officer will find a place in it. It is the fundamental duty of the prosecution to prove all the Crl.A. No.1689 of 2006 6 links starting from seizure of the contraband till it reaches in the hands of the analyst. Forwarding note is one of the links to prove the prosecution case in abkari cases. 10. 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 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**_ Crl.A. No.1689 of 2006 7 _**96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16))**_ .” 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. A. 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 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: Crl.A. No.1689 of 2006 8 “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 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 Crl.A. No.1689 of 2006 9 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 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 Crl.A. No.1689 of 2006 10 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.” 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 route of the case. Hence, 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 accused as per judgment dated 04.08.2006 in S. C. No. 327/2005 on the file of Additional Sessions Judge, Fast Track Court-III, Crl.A. No.1689 of 2006 11 Palakkad. is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is canceled. **Sd/P.V.KUNHIKRISHNAN, JUDGE** LU