Mudavankulam Remani v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 17TH DAY OF DECEMBER 2019 / 26TH AGRAHAYANA, 1941** **Crl.Rev.Pet.No.170 OF 2007(A)** **AGAINST THE JUDGMENT DATED 18-10-2006 IN CRA 277/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-III, THALASSERY AGAINST THE JUDGMENT DATED 31-03-2005 IN SC 610/2002 OF** **ASSISTANT SESSIONS JUDGE, PAYYANNUR** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **MUDAVANKULAM REMANI,D/O.THAMBI, AGED 41 YEARS, ARATHIPARAMBA, CHERUTHAZHAM AMSOM AND DESOM, TALIPARAMBA TALUK.** **BY ADV. SRI.P.P.RAMACHANDRAN** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA (S.H.O. PAYANGADI) REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR MS.M.N. MAYA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P.No.170/2007 2 ## **ORDER** The revision petitioner is the accused in crime No. 324/2002 of Payangadi police station for the offence punishable under Sections 55(a) and 55(g) of the Abkari Act. By judgment dated 31.03.2005, the learned Assistant Sessions Judge at Payyannur convicted and sentenced the accused to undergo simple imprisonment for six months each and to pay a fine of `1 lakh each and in default of payment of fine to undergo simple imprisonment for six months each more for the offences punishable under Sections 55(a) and (g) of the Abkari Act. Challenging the conviction and judgment, the accused preferred Crl.Appeal No.277/2005 before the Sessions Court, Thalassery. By judgment dated 18.10.2006, the learned Additional Sessions Judge, Adhoc III dismissed the appeal. Feeling aggrieved, the revision petitioner preferred this revision. 2. The prosecution case, in brief, is that on 20.10.2001 at 20.00 hrs., the accused was found distilling illicit arrack by using wash and utensils of Crl.R.P.No.170/2007 3 distillation at her residential house bearing door No. CP1/1018 A of Arathiparambu in Cheruthazham amsom against the provisions contemplated under Abkari Act and rules framed thereunder. 3. During trial, PWs 1 to 6 were examined and marked Exts.P1 to P8 and MO 1 and 2 series on prosecution side. On closing the evidence of the prosecution, the accused was questioned under Section 313 of Cr.P.C. The defence of the accused is one of total denial. 4. The learned Sessions Judge did not deem it fit and proper to acquit the accused under Section 232 of Cr.P.C. The accused was called upon to enter on his defence evidence adduce evidence in support of his case. However, no defence evidence was adduced. 5. Heard the learned counsel for the revision petitioner Mr. P.P. Ramachandran and the learned Public Prosecutor Ms. M.N. Maya, for the State. 6. The learned counsel for the revision petitioner contended that the investigation in this case was Crl.R.P.No.170/2007 4 conducted by PW4, who was not authorised by the Government to conduct investigation in respect of the area, where the occurrence took place. It is further contended that there was a delay of four days in producing the contraband before the court below and no evidence was adduced to show that the contraband was kept in safe custody. According to the learned counsel for the revision petitioner, since the investigation was conducted by the officer not competent to set the law in motion, the entire prosecution was vitiated with material irregularity and impropriety warranting to interference in revision. 7. PW1, the Sub Inspector of Payanagadi police station stated before the court that on 20.10.2001, he along with his party had gone for patrol duty and while so, at 19.30 hrs., he received a reliable information that the accused was un-authorisedly conducting distillation at his residence at Arathiparambu. Accordingly, he proceeded to the spot and seized the contraband at the spot itself. Ext.P2 search list was prepared. On the basis Crl.R.P.No.170/2007 5 of the search and seizure, Ext.P3 First Information Report was registered against the accused for the offence punishable under Section 55(a) and (g) of the Act. 8. PW4, who was working as Sub Inspector of Police, Thaliparamb had conducted investigation in this case pursuant to the direction issued by the Circle Inspector of Police, Thaliparamba. It is a fact that the occurrence in this case was detected within the jurisdiction of Payangadi police station. Ext.P2 search list was prepared by PW1 on 20.10.2001. However, Ext.P2 search list was forwarded to the court on 21.10.2001 itself. However, MO1 contraband articles were produced before the court only on 23.10.2001. Evidently, there was some delay in producing the contraband before the court. This is material in view of the fact that Ext.P2 search list was received in court much earlier than the contraband articles. No explanation was offered by PW1 for the delay in furnishing the contraband before the court. Further, it is Crl.R.P.No.170/2007 6 well settled principle of law that only officers especially authorised by the Government under Section 4 of the Act as Abkari officers can discharge the various functions under the Act like arrest, detention of offence, investigation etc. In **Suresh v. State of Kerala** [2017 (2) KLT 765] this court held in paragraph 11 of the judgment as follows: “11. This Court has consistently held in so many decisions like **Subramaniyan v. State of Kerala** [2010(2) KLT 470], **Sasidharan v. State of Kerala** [2012(2) KLT 392], **Hashim v. Assistant Sub Inspector** [2014(2)KLT 346], **Haridas v. State of Kerala** [2015(1) KLT 958] etc., that only officers specifically authorised by the Government under S. 4 of the Act as Abkari Officers, can discharge the various functions under the Act, like arrest, detection of offence, investigation etc. Haridas v. State of Kerala is a case where an Excise Inspector attached to another Excise Range conducted investigation. The Exicse Inspector claimed authority for investigation on the basis of an authorisation given by the Assistant Excise Commissioner. This Court held that what is required is a specific Government notification authorising particular category Crl.R.P.No.170/2007 7 of officers as Abkari Officers within specified limits, and that such powers cannot be conferred by the higher officials.” 9. In view of the above, it is clear that PW4, who was then working as Sub Inspector of Police, Thaliparamba had no jurisdiction to conduct investigation within the jurisdiction of Payangadi police station limits, where the occurrence took place. PW4 was not competent to conduct investigation without authorisation issued by the government specifying the Payangadi police station limit. In view of the above, this court is of the view that the investigation conducted by PW4 and the final report submitted by PW4 are not in accordance with law. It is not a curable irregularity as defined under the Code of Criminal Procedure. The entire trial is vitiated with material irregularity and impropriety. Hence, the conviction and sentence rendered by the trial court is confirmed by the appellate court are liable to be set aside. 10. In the result, the revision is allowed. The conviction and sentence imposed by the trial court under Crl.R.P.No.170/2007 8 Section 55(a) and (g) of the Abkari Act as confirmed by the appellate court in appeal are set aside. The accused stands acquitted. If any amount is deposited by the revision petitioner either before the trial court or appellate court, the same shall be released to the revision petitioner in accordance with rules. Sd/- **N. ANIL KUMAR JUDGE** ncd