Manikandan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942** ## **CRL.A.No.2376 OF 2006** **AGAINST THE JUDGMENT IN SC NO.891/2005 DATED 21.11.2006 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.II, PALAKKAD** ## **APPELLANT/ACCUSED:** **MANIKANDAN AGED 39 YEARS S/O.VELAYUDHAN, POOLAKKALPOTTA VEEDU,, KOLLATHARA, PERINGOTTUKAVU DESOM,, ELAVANCHERRY VILLAGE, CHITTUR TALUK,, PALAKKAD DISTRICT.** **BY ADV. SRI.C.C.THOMAS (SR.)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE OFFICE,, KOLLENGODE, PALAKKAD DISTRICT, REPRESENTED BY, PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** **R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL NO.2376/2006 2** ## **JUDGMENT** ## **Dated this the 9th day of December 2020** .. The appellant is the accused in S.C.No.891 of 2005 on the file of the Additional Sessions Judge, Fast Track Court No.II, Palakkad. 2. The above case is charge sheeted by the Excise Inspector, Kollengode Excise Range against the appellant alleging offences under Sections 55(a) r/w. Section 8(2) of the Abkari Act. 3. The prosecution case is that, on 23.8.2004 at about 10.20 p.m. the accused was found transporting 5 litres of illicit arrack in a 10 litre cannas in TVS-50 XL bearing registration No.KL 9 L 5043 for the purpose of sale at Pailoor Elavancherry road in Pailoor Desom, Kollengode II Village in violation of the provisions of the Abkari Act. 4. To substantiate the case, the prosecution examined PW1 to PW7. MO1 is the material object. 5. After going through the evidence and documents, the trial court found that, the accused ## **CRL.APPEAL NO.2376/2006 3** committed the offence under Section 55(a) r/w. Section 8(2) of the Abkari Act. The accused is sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.1 lakh. In default of payment of fine, the accused is directed to undergo simple imprisonment for four months. 6. Aggrieved by the above conviction and sentence, this criminal appeal is filed. 7. Heard the learned counsel for the appellant and the learned public prosecutor. 8. The learned counsel for the appellant submitted that, the entire prosecution is vitiated for the simple reason that, an incompetent officer conducted search, seizure, arrest and registration of the crime. According to the counsel, PW3 is the Assistant Excise Inspector, who is not a competent officer to do the same. The counsel submitted that, for that simple reason, the entire prosecution is vitiated. 9. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove ## **CRL.APPEAL NO.2376/2006 4** this case and this Court may not interfere with the conviction and sentence imposed by the lower court on technical grounds. 10. The point for consideration in this appeal is whether the accused committed the offences under sections 55(a) r/w. Section 8(2) of the Abkari Act. 11. Admittedly, the search, seizure, arrest and registration of the crime are done by an Assistant Excise Inspector. He is not an authorized officer as on 8.5.2009. The alleged incident in this case was on 23.8.2004. In such circumstances, I think, the entire prosecution is vitiated. In Bhaskaran v. State of Kerala [2018 (4) KLT 894], Subrahmaniyan v. State of Kerala [2010 (2) KLT 470] and Sasidharan v. State of Kerala [2012 (2) KLT 392] this Court considered this point. **==> picture [412 x 13] intentionally omitted <==** Bhaskaran’s case (supra) is extracted hereunder : _“12. Here in this case, PW1 was only an Assistant Excise Inspector. It was argued by the learned counsel for the appellant that the arrest of the accused, the seizure of the articles and sampling of the articles done by_ ## **CRL.APPEAL NO.2376/2006 5** _the Assistant Excise Inspector were without jurisdiction. Since the illegality annexed to the main parts i.e., the arrest, seizure and sampling, that will go to the root of the matter and hence the cognizance taken and the trial conducted based on such a report are vitiated. Though as per SRO No.234/1967, Preventive Officers were invested with the powers to be exercised under Sections 31, 32, 35, 38, 39, 53 and 59, since the preventive officers are officers specifically named as per the aforesaid notification, the arrest of the accused and seizure of the articles and the production of the accused and property before the Magistrate by the Assistant Excise Inspector, who is not a named or notified officer, are without jurisdiction as has been held by this Court in Subrahmaniyan v. State of Kerala (2010(2)KLT 470)._ _13. It has also come out in evidence that the notification-SRO.361/2009 dated 08.05.2009, as per which the Assistant Excise Inspector of the Range were empowered to exercise all the powers and to perform all the duties of the Excise Inspectors subject to the control of the Excise Inspector. So, as per the latest notification of 2009, all officers of the Excise Department not below the rank of Assistant Excise Inspector were empowered to perform the acts and duties mentioned in Sections 40 to 53 (both inclusive) of the Act. They were also empowered to exercise the duties under Sections 31, 32, 34, 35, 38, 39 and 53 of_ ## **CRL.APPEAL NO.2376/2006 6** _the Act and to exercise all the powers conferred and to perform all the duties assigned on Abkari Officers under the sections aforesaid._ _14. In this case, the offence was detected on 16.4.2002 i.e., before the notification S.R.O.361/2009 dated 08.5.2009. So, the above said notification will not rescue the prosecution in this case since the offence was detected on 16.4.2002. So, the only basis on the notification S.R.O.234/1967, the Assistant Excise Inspector was not mentioned as authorised person to detect the offence. Only the offences detected by the Assistant Excise Inspector after 8.5.2009 is to be well within his power. So only the sole ground that the Assistant Excise Inspector was not empowered under the Act as has held in the ruling in Subrahmaniyan's case (supra), the appellant herein is entitled to get acquittal as prayed or. Accordingly, this appeal is allowed.”_ 13. Similarly in Sasidharan’s case (supra) also, the same point is considered. The relevant portion is extracted hereunder : _“17. But it is argued by the learned counsel for the appellant that as per Section 70 of the Act, all notification and orders conferring powers, imposing duties and making appointments under the act may respectively refer to the persons concerned specially by name or in virtue of their office or to classes_ ## **CRL.APPEAL NO.2376/2006 7** _of officials generally by the official titles. It is argued since as per the notification in S.R.O.No.234/1967 it was specifically mentioned that the acts and duties mentioned in Sections 40 to 53 of the Act are to be performed by the officer not below the rank of Excise Inspector and since PW2 was only an Assistant Excise Inspector, the arrest of the accused, seizure of the articles and sampling of the articles done by him were without jurisdiction. Since the illegality annexed to the main parts i.e., the arrest, seizure and sampling, that will got to the root of the matter and hence cognizance taken and the trial conducted based on such a report are vitiated. Though as per S.R.O.No.234/1967, Preventive Officers were invested with the powers to be exercised under Sections 31, 32, 35, 38, 39, 53 and 59, since the preventive officers are officers specifically named as per the aforesaid notification, the arrest of the accused and seizure of the articles and the production of the accused and property before the Magistrate by the Assistant Excise Inspector who's not a named or notified officer, are without jurisdiction as has been held by this Court in Subrahmaniyan v. State of Kerala 2010(2)KLT 470). 18. Smt.Jasmine, the learned Public Prosecutor submits that the contention that even thereafter no notification was issued authorising and empowering the Assistant Excise Inspector to perform the duties under the Act_ ## **CRL.APPEAL NO.2376/2006 8** _cannot be countenanced in view of the subsequent notification S.R.O.No.361/2009 dated 8.5.2009 as per which the Assistant Excise Inspector of the Range were empowered to exercise all the powers and to perform all the duties of the Excise Inspectors subject to the control of the Excise Inspector. It was further made clear that all officers of the Excise Department not below the rank of Assistant Excise Inspector were empowered to perform the acts and duties mentioned in Sections 40 to 53 (both inclusive) of the Act. They were also empowered to exercise the duties under Sections 31, 32, 34, 35, 38, 39 and 53 of the Act and to exercise all the powers conferred and to perform all the duties assigned on Abkari Officers under the sections aforesaid. But that notification cannot come to the rescue of the prosecution in this case since this notification S.R.O.No.361/2009 came into force only with effect from 8.5.2009 whereas the offence in this case was detected on 19.6.2001. The incident in the case on hand took place long prior to the aforesaid notification. Hence, following the decision in Subrahmaniyan's case, it has to be held that PW2, the Assistant Excise Inspector was not empowered under the Act as it stood then, to perform the duties under the aforestated provisions. Therefore, only on this ground, this Criminal Appeal is allowed. But it is made clear that on and after 8.5.2009, the arrest of the accused, seizure of contraband, sampling,_ ## **CRL.APPEAL NO.2376/2006 9** _sealing and production of the accused and properties before Court, done by the Assistant Excise Inspector, would be well within his powers.”_ In the light of the above authoritative judgments of this Court, the trial in this case is vitiated. **==> picture [447 x 44] intentionally omitted <==** doubt. Hence, this criminal appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 21.11.2006 in S.C.No.891 of 2005 on the file of the Additional Sessions Judge, Fast Track Court No.II, Palakkad are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **pkk** ## **JUDGE**