K.V. Suresh v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 CRL.REV.PET NO. 685 OF 2016 ``` ``` CRIME NO.35/2008 OF KUMBALA EXCISE RANGE OFFICE, KASARGOD AGAINST THE ORDER/JUDGMENT IN SC 554/2012 OF ASSISTANT SESSIONS ``` ## **`COURT, KASARAGOD`** ``` AGAINST THE ORDER/JUDGMENT IN CRA 65/2015 OF ADDITIONAL SESSIONS ``` ``` COURT-III, KASARAGOD ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` K.V.SURESH AGED 46 YEARS AGED 46 YEARS, S/O.LATE GOPALA KRISHNA HEGDE, COOLI, R/AT.NARAYANA MANGALAM HOUSE, NEAR CHERUMBA BHAGAVATHI TEMPLE,KOLPADY VILLAGE, MANJESHWAR TALUK,KASARAGOD DISTRICT. BY ADVS. RESHMA E. ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SMT. NIMA JACOB - PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ``` ``` ON 07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 685 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** ## **ORDER** This revision is at the instance of the accused in S.C. No.554 of 2012 on the file of Assistant Sessions Judge, Kasaragod, assailing the judgment in Crl.Appeal No.65 of 2015 on the file of Additional Sessions Judge-III, Kasaragod, which upheld his conviction under Section 55(a) of the Abkari Act, though the sentence was modified and reduced to certain extent. 2. The prosecution case is that, on 17.09.2008 at about 4.15 p.m., the revision petitioner was found in possession of 150 packets of arrack containing 100 ml. each in a white plastic sack at Nayikkappu Junction. PW1, the Excise Circle Inspector, Kasaragod, and excise party while on patrol duty, detected the offence. The revision petitioner was arrested and the contraband was seized. 3. After completing the legal formalities, the revision petitioner along with the records and the ``` CRL.REV.PET NO. 685 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** contraband seized were produced before the Excise Range Office, where crime and occurrence report was registered against him. PW6, Excise Inspector investigated the case and filed charge sheet against the revision petitioner under Sections 8(1) and 8(2) of the Abkari Act. 4. On appearance of the accused before the trial court, charge was framed under Section 8(2) of the Abkari Act, read over and explained, to which, he pleaded not guilty and claimed to be tried. PWs.1 to 6 were examined and Exts.P1 to P11 were marked from the side of prosecution, to prove its case. 5. On closure of prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C., and he denied all the incriminating circumstances brought on record, but no defence evidence was adduced. 6. On appreciating the facts and evidence and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under ``` CRL.REV.PET NO. 685 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** Section 55(a) of the Abkari Act, and he was sentenced to undergo rigorous imprisonment for two years and fine of Rs.1 lakh, with a default sentence of simple imprisonment for a further period of two months. 7. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl.Appeal No.65 of 2015. The appellate court, on re-appreciating the facts and evidence, upheld the conviction under Section 55(a) of the Abkari Act, but the sentence was modified to simple imprisonment for one year and fine of Rs.1 lakh with a default sentence of simple imprisonment for a further period of three months, against which, he has preferred this revision. 8. Now this Court is called upon to verify the legality, propriety and correctness of the impugned judgments of conviction and sentence imposed on the revision petitioner, by the courts below. 9. Heard learned counsel for the revision petitioner ``` CRL.REV.PET NO. 685 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** and learned Public Prosecutor. 10. Learned counsel for the revision petitioner is assailing the conviction and sentence pointing out some material irregularities, which, according to her, are sufficient to vitiate the trial. First of all, she would say that, there was no independent evidence corroborating the prosecution case, as PWs.2 and 5, the independent witnesses, turned hostile to the prosecution. She is assailing Ext.P9 inventory on the ground that there was violation of Section 53A of the Abkari Act. According to her, it was prepared by PW3, the Preventive Officer who was allegedly holding charge of Excise Inspector. Ext.P9 is signed by PW3 on 18.09.2008. Though that document is signed by the Assistant Excise Commissioner, who is an authorized officer under Section 67B of the Abkari Act, he has not put the date on which he signed the inventory. Since the dated signature of PW3 is seen in Ext.P9 inventory, in all probability, that document might have ``` CRL.REV.PET NO. 685 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** been prepared by PW3, who is not an authorized officer. 11. Learned counsel for the revision petitioner is relying on the decision **Kusuma v. State of Kerala** [2022 KHC 556], wherein this Court held that, when the inventory was marked and prepared by the Excise Inspector, who is not an authorized officer, it violates the statutory mandate and hence, the conviction of the accused is not proper, and he is entitled for an acquittal. 12. The revision petitioner has put forward another contention that, PW3 was only a Preventive Officer and no documents were produced by prosecution to show that, on the date of preparation of the inventory, or on the date of registration of the crime, he was holding the charge of Excise Inspector. So, he was not even competent to register the crime, for which reliance is placed on the decision **Umesh K v. State of Kerala** [2022 KHC 1010 : 2023 (1) KLT 7], wherein it was held that, as per Chapter XXV of the Kerala Excise Manual, Vol.II and Clause 26 ``` CRL.REV.PET NO. 685 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** thereof, abkari cases shall be registered in Form OR.1 by the Excise Inspector of the concerned range from which the case was detected. The Assistant Excise Inspectors, who hold charge of the Excise Inspector can also register the crimes at range office. Here, PW3 was only a Preventive Officer and he was not an Assistant Excise Inspector, who was competent to hold the charge of Excise Inspector to register the crime at range office. During cross examination of PW3 also, the revision petitioner was challenging his authority to register the crime. Even then no documents were produced to prove that, he was holding the charge of Excise Inspector on the date of registering the crime. So, it has to be held that, PW3 was not competent to register the crime, and he was not competent to prepare the inventory also, as he was not an authorized officer under Section 67B of the Abkari Act. 13. The next contention taken up by the revision petitioner is that, in Ext.P9 inventory, the certification is ``` CRL.REV.PET NO. 685 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** made by the Judicial First Class Magistrate, Kasaragod. As per Section 53A(2) of the Abkari Act, the certification as to the correctness of the inventory prepared, the certification of the photograph etc. are to be done by an Executive Magistrate and not by a Judicial Magistrate. In **Santhosh T.A. And another v. State of Kerala** [2017 (5) KHC 107], this Court held that, the Magistrate referred to in Section 53A(2) is not a Judicial Magistrate, but an Executive Magistrate, interpreting Sub Section 4 of Section 3 of the Code of Criminal Procedure. 14. Section 3(4) of Cr.P.C reads as follows; (4) “ Where under any law, other than this Code, the functions exercisable by a Magistrate relate to matters- (a) which involve the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrte; or (b) which are administrative or executive in ``` CRL.REV.PET NO. 685 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exericisable by an Executive Magistrate.” 15. The functions exercisable by a Magistrate as defined in sub Section 4 of Section 3 of the Code of Criminal Procedure was distinguished in that decision, and it was held that, a Judicial Magistrate cannot entertain an application under Section 53A of the Abkari Act, since the act contemplated by it is not a judicial one, but executive. In **Mammoo v. State of Kerala** [1979 KHC 348 : AIR 1980 Ker. 18] also this Court held that, when Judicial Magistrates are called upon to act under the provisions of any law, other than the Code, their functions are to be only judicial in character. 16. Paragraph 7 of the decision **Mammoo** [1979 KHC 348] reads thus; “7. The functions exercisable by the Executive Magistrates under the Code of 1973 are not necessarily executive. They are invested with judicial ``` CRL.REV.PET NO. 685 OF 2016 ``` ``` ..10.. ``` functions also under the Code. Under S.133 of the Code Executive Magistrates have the power to order the removal of nuisance. Under S.145 of the Code they have power to determine disputes concerning land or water if such dispute is likely to cause breach of the peace. Evidently therefore the functions of the Executive Magistrates while acting under the Code are not necessarily executive. But when acting under any law other than the Code the Executive Magistrates could exercise only executive or administrative functions. Similarly when Judicial Magistrates were called upon to act under the provisions of any law other than the Code their functions are to be only judicial in character. This is the new scheme brought about by S.3(4) of the Code of Criminal Procedure. That reads as follows: “3(4) Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters (a) which involve the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or (b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a ``` CRL.REV.PET NO. 685 OF 2016 ``` **==> picture [44 x 9] intentionally omitted <==** prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate”. The subsection indicates that a judicial Magistrate when acting under any law other than the Code can exercise functions which (1) involve the appreciation or sifting of evidence (2) involve the formulation of any decision which exposes any person to any punishment or penalty or detention in custody or (3) involve any decision that would have the effect of sending any person for trial before any court. That subsection also indicates that when an Executive Magistrate exercises powers under any law other than the Code the functions exercisable by him are administrative or executive in nature. This is illustrated by reference to functions such as grant, suspension or cancellation of licences and sanctioning of or withdrawing from prosecutions. An Executive Magistrate cannot, after the commencement of operation of the Code of 1973, exercise any function other than that of an administrative or executive nature while functioning outside the purview of the Code of Criminal Procedure. We have already indicated that his functions under the Code may be executive, administrative or judicial.” 17. Administrative matters are to be dealt with by the Executive Magistrates and not by the Judicial Magistrates, as it was held by this Court in ``` CRL.REV.PET NO. 685 OF 2016 ``` **==> picture [44 x 9] intentionally omitted <==** **Thankappan v. State of Kerala and others** 1995 KHC 373]. On going through the functions to be exercised under Section 53A(2) of the Abkari Act, there is no doubt as to the functions to be exercised by a Magistrate mentioned, is purely administrative in nature and not judicial. 18. In **Sathyan v. State of Kerala** [2023 (3) KHC 97], this Court held that, the certification of the correctness of an inventory prepared under Section 53A(2) of the Abkari Act, is an administrative function and is to be done by an Executive Magistrate. 19. Analysing the functions to be exercised by a Magistrate as envisaged under Section 3(4) of Cr.P.C and also going by the decisions cited supra, it is clear that, administrative matters had to be dealt with by the Executive Magistrates and not by the Judicial Magistrates. In the case on hand, Ext.P9 inventory was certified by the Judicial Magistrate and not by an Executive Magistrate. The conviction based on such an inventory, which was not ``` CRL.REV.PET NO. 685 OF 2016 ``` **==> picture [44 x 9] intentionally omitted <==** certified by an Executive Magistrate, cannot be sustained. Moreover, Ext.P9 inventory was seen prepared by PW3, the Preventive Officer, though it contains an undated signature of the Assistant Excise Commissioner. So, that inventory could not have been acted upon, to find that the revision petitioner was possessing 150 packets of liquor. The illegality committed in preparing and certifying the inventory is not liable to be corrected, as the contraband has been destroyed. 20. Apart from the anomalies pointed out with respect to Ext.P9 inventory, learned counsel for the revision petitioner would say that, inordinate delay occurred in completing the investigation and also in filing the final report. The occurrence in this case was on 17.09.2008, and the witnesses were questioned only in the year 2010. The prosecution has not offered any explanation for the delay in questioning the witnesses and on completing the investigation. The final report was seen filed before the ``` CRL.REV.PET NO. 685 OF 2016 ``` **==> picture [44 x 9] intentionally omitted <==** court only on 06.01.2011. As per Section 50 of the Abkari Act, every investigation into the offences under the Act shall be completed without unnecessary delay. No explanation has been given by the prosecution as to why there occurred so much of delay in completing the investigation and filing the final report. The unexplained delay in completing the investigation and filing the final report, no doubt, is fatal to the prosecution case. [See **Chandran vs. State** MANU/KE/2035/2016 : 2016 (5) KHC 650, **Kumaran P v. State of Kerala** 2016 (4) KLT 718, and **Moothedath Sivadasan v. State of Kerala** 2021 (1) KLT 744]. 21. The conviction and sentence of the revision petitioner by the courts below, without noticing the illegalities and irregularities in the registration of crime, preparation as well as in the certification of the inventory, unexplained delay in investigation, filing charge sheet etc, are liable to be set aside. ``` CRL.REV.PET NO. 685 OF 2016 ``` **==> picture [44 x 9] intentionally omitted <==** 22. In the result, the revision petition is allowed, setting aside the conviction and sentence imposed on the revision petitioner, by the courts below. The revision petitioner is found not guilty of the offence under Section 55(a) of the Abkari Act and he is acquitted under Section 235(1) of Cr.P.C. His bail bond is cancelled and he is set at liberty forthwith. The revision petition accordingly stands allowed. **Sd/SOPHY THOMAS JUDGE** LU