MANIKUTTAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940** ## **CRL.A.No. 2019 of 2004** **AGAINST THE JUDGMENT IN SC 474/2002 DATED 29.11.2004 of ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT-I), THIRUVANANTHAPURAM** ## **APPELLANT :** **MANIKUTTAN, AGED 34 YEARS, S/O.CHELLAPPAN, RESIDING AT T.C.NO.14/1024, CHENNITODE COLONY, ANAMUGHAM WARD, KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM.** **BY ADV. SRI.ANIMON A. JOHN** ## **RESPONDENTS :** **1 STATE OF KERALA, REPRESENTED BY DIRECTOR OF PUBLIC PROSECUTION, HIGH COURT OF KERALA, HIGH COURT BUILDINGS, KOCHI. 2 THE SUB INSPECTOR OF POLICE, MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM.** **BY PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING :** **CRL.A.No. 2019 of 2004** 2 ## **JUDGMENT** The appellant is the 2[nd] accused in S.C.No.474/2002 on the files of Additional District and Sessions Court, Fast Track Court-I, Thiruvananthapuram District for offences punishable under Sections 55(a) and 55(1) of the Abkari Act. 2. The case of the prosecution is that on 29.10.2000, at 2.15 p.m., while the police party was conducting patrol duty, they got reliable information that the 2[nd] accused was engaged in selling arrack in the coconut garden and when they reached the aforesaid place, they found 2[nd] accused, who tried to escape from the scene by abandoning the Cans and glass. But, he was intercepted by the police party, questioned the 2[nd] accused and it was revealed that he was holding a Can containing arrack which was kept for the purpose of sale and that it entrusted to him by the 1[st] accused, his mother and spirit of 80 litres and 12 litres of arrack were seized from **CRL.A.No. 2019 of 2004** 3 the possession of the 2[nd] accused, who is the appellant. Ext.P1 mahazar was drawn and was charge sheeted under Section 55(a) of the Abkari Act. 3. The learned Sessions Judge, as per judgment dated 29.11.2004 found him guilty of the offences, under Section 55(a) of the Abkari Act and convicted and sentenced him to undergo rigorous imprisonment for four years and to pay fine of Rs.1 lakh and in default of payment of fine, to undergo rigorous imprisonment for one year. Aggrieved by the judgment of the court below, this appeal has been preferred. 4. The case was detected by PW5, the then Assistant Sub Inspector of Police, Medical College Police Station. On 29.10.2000, at 2.15 p.m., the police party under the leadership of PW5 was conducting patrol duty, detecting the contraband articles and while so, he got reliable information that someone is selling arrack in the coconut garden of Eravathukonam, Chettikunnu and **CRL.A.No. 2019 of 2004** 4 therefore, the police party reached at the aforesaid place and then he could see the 2[nd] accused was attempting to escape from there by running after abandoning the Can and glass, which were found in his possession. But the police party detained him and questioned him and then he informed that in the Can there was arrack and it was brought there for the purpose of sale and therefore, PW5 arrested him at the spot and he also informed PW5 that the arrack is entrusted to him by the first accused, his mother for the purpose of sale, that PW5 also saw two white Cans, each Can having a capacity of 40 litres containing full of spirit, another black Can having a capacity of 35 litres containing 5 litres of arrack, another black Can having a capacity of 5 litres containing full of arrack, another black Can having a capacity of 3 litres containing about 2 litres of arrack and a glass having a capacity of 150 ML., near the 2[nd] accused and therefore, he seized the same after preparing Ext.P1 mahazar **CRL.A.No. 2019 of 2004** 5 containing the signatures of himself and the witnesses. He sealed the Cans at the spot. He could understand that in the Can, there is spirit and arrack on examining the liquid contained therein by tasting and smelling. He took the 2[nd] accused, the contraband articles and the records to the police station and thereafter registered this case against and the first and 2[nd] accused for offences punishable under Sections 55(a) and (i) of the Abkari Act for which he prepared Ext.P4 F.I.R. He produced the 2[nd] accused before the court on 30.10.2000 with a remand report. He also produced the contraband articles before the court. He conducted the investigation. He questioned witnesses and took their statements. He submitted a forwarding note to the court for taking sample from the Cans and for forwarding the same for chemical examination, thereby sample is taken and forwarded the same for chemical examination. Subsequently, the investigation was taken over by PW4, the then Sub Inspector of Police, Medical **CRL.A.No. 2019 of 2004** 6 College Police Station. He submitted Ext.P2 report to the court furnishing correct name and address of the first accused. He obtained Ext.P3 chemical analysis certificate. After completing the investigation, he laid this charge sheet against the first and second accused for offences punishable under the aforesaid sections. 5. The charge sheet is laid before the Addl. Chief Judicial Magistrate Court, Thiruvananthapuram. The learned Addl. Chief Judicial Magistrate, Thiruvananthapuram taken the case on file as C.P.No.12/2001 and issued summons to A1 and A2 and they appeared before that court. Subsequently, the case was committed to the Sessions Court, Thiruvananthapuram and the Sessions Court, Thiruvananthapuram taken the case on file as S.C.No.474/2002 and then initially made over the case to the 1[st] Additional Assistant Sessions Court, Thiruvananthapuram and subsequently made over the case to the Additional Sessions Judge (Fast Track Court-I), **CRL.A.No. 2019 of 2004** 7 Thiruvananthapuram. 6. The prosecution examined PWs 1 to 5 and Exts.P1 to P6 were marked and Mos 1 and 2 were also identified. After questioning the accused under Sections 313 of the Code of Criminal Procedure and after hearing the accused under Section 232 of the Cr.P.C., the case was posted for defence evidence and defence examined one witness as DW1 and Exts.D1 and D1(a) were marked. 7. The accused was selling arrack in the coconut garden of Eravathukonam, Chetikunnu and the offence was detected by PW5 while he was on patrol duty. When they reached near the place of occurrence, the 2[nd] accused was attempting to escape from there by running after abandoning the Can and glass there. But the police party detained him and questioned him and then he informed that in the Can there is arrack and it was brought for the purpose of conducting sale and therefore PW5 arrested him at the spot and he also informed PW5 that the arrack is entrusted to him **CRL.A.No. 2019 of 2004** 8 by A1 his mother for the purpose of sale. 8. According to PW5, he tasted and smelt the liquid and found that the Can contained spirit and arrack. PW2, who accompanied PW5 during the patrol duty on 29.10.2000 at 2.15 p.m. and has given evidence according to the evidence of PW5. He has also testified that the 2[nd] accused was arrested from the spot and contraband articles were sealed and thereafter seized the same after Ext.P1 mahazar. In the presence of independent witnesses he himself also subscribed his signature. PW1 and PW3 were the independent witnesses and examined to prove the occurrence. They are also the attesters of Ext.P1 mahazar. PW2 is the then Head Constable of Police, Medical College Police Station, who was examined to prove the occurrence. PW4 was the then Sub Inspector of Police, Medical College Police station, who completed the investigation and laid this charge sheet. 9. The main argument advanced by the **CRL.A.No. 2019 of 2004** 9 learned counsel for the appellant was that the offence was detected by the Assistant Sub Inspector of Police, Medical College Police Station, Thiruvananthapuram. The offence was detected on 29.10.2000. I have gone through the judgment of the lower court below and found that the same argument was advanced by the counsel for the appellant before the lower court by stating that PW5 was only an Assistant Sub Inspector of Police and he was not at all empowered by the provisions of the Abkari Act to detect the abkari offence and to conduct investigation therein and therefore, on these grounds itself, the first and 2[nd] accused were entitled to get an acquittal . **==> picture [353 x 10] intentionally omitted <==** substantiated his contention on relying on the notification issued as SRO.No.321/96(G.O.(P) No.69/96/TD dated 29.03.1996. 11. As per the notification, “in exercise of the powers conferred by Sec.4 of the Abkari Act 1 of 1077, the Govt.of Kerala hereby appoint all ## **CRL.A.No. 2019 of 2004** ## 10 police officials of and above the rank of Sub Inspector of police in charge of law and order and working in the Central Executive Branch of the Police department and Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective jurisdiction for the purposes of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 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”. 12. The learned counsel for the appellant also pointed out the same notification and argued that PW5 was only an Assistant Sub Inspector of Police and he will not come within the purview of a police officer and above rank of Sub Inspector. Therefore, whatever act done by him under the provisions of the Abkari Act are illegal. Disagreeing with the defence, advanced by the counsel before the lower court, it has held that **CRL.A.No. 2019 of 2004** **==> picture [12 x 8] intentionally omitted <==** the notification will not be sufficient to examine the PW5 from acting as an Abkari officer. So, detection as done by PW5 is perfectly maintainable. 13. It has also held that the notification (cited supra) is not sufficient to discard the detection by PW5. It has also come out that inorder to establish that there was no Sub Inspector of Police at the same Station, at the time of detection of the offence and also there was an attempt on the part of the prosecution that PW5 was in charge of the Station House Officer at that time, he was empowered to act in the absence of the SHO. So, the detection effected by him is legal. PW1, who was in charge of DG was also examined to prove that there was no Sub Inspector and Additional Sub Inspector at the same Police Station. So the evidence of DW1 has supported by Ext.D1(a) and would clarify that the prosecution case that PW5 was holding charge of the then Sub Inspector of Police, Medical College **CRL.A.No. 2019 of 2004** 12 Police Station and while holding the charge of Sub Inspector of Police, he detected the case on 29.10.2000, registered the case and conducted investigation. So, it was held by the lower court that PW5 detected this case and registered this case and conducted investigation in his capacity as the then Sub Inspector of Police, Medical College Police Station. Therefore, the contention of the defence counsel that PW5 is not at all empowered to detect this case, register this case and conduct investigation is not at all sustainable. 14. It has also held that the provisions of the Abkari Act never prohibited detection of offences under the Abkari Act by the Assistant Sub Inspector of Police. It has also held that the above said SRO would only show that all the police officials of and above the rank of the Sub Inspector of police in charge of law and order and working in the General executive branch of the police department and Revenue officers of and **CRL.A.No. 2019 of 2004** 13 above the rank of Deputy Collectors are appointed as Abkari officers for the purposes of the sections mentioned therein and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari officers in the aforesaid sections. 15. It has also held that the above SRO never prohibit an Assistant Sub Inspector of police from exercising powers and discharging the duties conferred and imposed on Abkari officers. So, the argument advanced by the defence counsel was discarded by the court below and found him guilty under Sections 55(a) and (i) of the Kerala Abkari Act. 16. Now the only question which was brought before me is to consider that the detection by PW5 is illegal as he was not an Abkari Officer at the time of detection of the alleged offence. So, the Abkari Officer, who detected the offence as per the SRO Notification 29.03.1996. will not authorise the Assistant Sub **CRL.A.No. 2019 of 2004** 14 Inspector of Police to detect the offence because he is not an Abkari Officer as per the notification effected by the Government. 17. In _**Mahesh M.K v. State (2017 (1) KHC**_ _**120)**_ , it is held that “a Police Officer appointed as an Abkari Officer as per the notification is not an Abkari Officer everywhere, that he is an Abkari Officer only within his territorial jurisdiction, and that he cannot investigate into an offence committed outside his jurisdiction even upon the orders of his superior Officers”. The same view has been reiterated in the decisions of this Court reported in _**Saji @ Kochumon v. State of Kerala (2010 (3) KLT 471) and Narayankutty v. State of Kerala (2015(1) KHC 702)**_ . 18. Even though the prosecution has succeeded in establishing that the appellant was conducting sale on arrack and spirit at the time of detection of the offence by PW1, but as has held in the ruling cited supra, PW5 was not an abkari officer at the time of detection of the **CRL.A.No. 2019 of 2004** **==> picture [12 x 8] intentionally omitted <==** offence. So, on these sole ground, the appellant is entitled to get acquittal as prayed for. In the result, the conviction and the sentence passed against the appellant in S.C. No. 474/2002 by the Additional Sessions Court (Fast Track-I), Thiruvananthapuram is set aside. The bail bond executed by him shall stand cancelled and he is set at liberty forthwith. Sd/- **ANNIE JOHN, JUDGE** RKM