Murali v. State of Kerala; Raju v. State of Kerala; Swaminathan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 1[ST] DAY OF AUGUST 2022 / 10TH SRAVANA, 1944 CRL.A NO. 1690 OF 2006 ``` ``` AGAINST THE ORDER/JUDGMENTSC 885/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, PALAKKAD ``` ## **`APPELLANT/S:`** ``` MURALI, AGED 27 YEARS, S/O. GANGADHARAN, ACHANAMKODU, KOLLENGODE. BY ADV BINOY VASUDEVAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTATION BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SRI.SANAL.P.RAJ, PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.08.2022, ALONG WITH CRL.A.1691/2006, 1709/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- Crl.A.Nos. 1690, 1691 & 1709 of 2006 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 1[ST] DAY OF AUGUST 2022 / 10TH SRAVANA, 1944 CRL.A NO. 1691 OF 2006 AGAINST THE ORDER/JUDGMENTSC 885/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, PALAKKAD ``` ## **`APPELLANT/S:`** ``` RAJU, S/O KANDAN, AGED 35 YEARS, PARAYAMPALLAM DESOM,, MUTHALAMADA VILLAGE, CHITTUR TALUK,PALAKKAD DIST. ``` ``` BY ADV BINOY VASUDEVAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTATION BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.08.2022, ALONG WITH CRL.A.1690/2006 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -3- Crl.A.Nos. 1690, 1691 & 1709 of 2006 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 1[ST] DAY OF AUGUST 2022 / 10TH SRAVANA, 1944 CRL.A NO. 1709 OF 2006 ``` ``` AGAINST THE ORDER/JUDGMENTSC 885/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, PALAKKAD ``` ## **`APPELLANT/S:`** ``` SWAMINATHAN, AGED 46 YEARS, S/O.KITTU, PERUKUNNATHU VEEDU,, PARAYAMPALLAM DESOM, MUTHALAMADA. ``` ``` BY ADV BINOY VASUDEVAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTATION BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.08.2022, ALONG WITH CRL.A.1690/2006 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -4- Crl.A.Nos. 1690, 1691 & 1709 of 2006 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== Crl.A.Nos. 1690, 1691 & 1709 of 2006 ============================================================= Dated this the 1[st] day of August, 2022 ## **JUDGMENT** These three criminal appeals are filed by accused Nos. 1 to 3 in SC No.885 of 2005 on the files of the Additional Sessions Judge Fast Track Court No.II, Palakkad. The above case is chargesheeted against the appellants alleging offences punishable under Sections 55(b) and (g) of the Abkari Act. 2. The prosecution case is that on 07.08.2003 at about 10 am, the accused were jointly found manufacturing illicit arrack at Parayampallam Desom in Muthalamad Village in violation of the provisions of the Abkari Act. The accused, therefore, are alleged to have committed the offences. 3. To substantiate the case prosecution examined PW1 to PW6. Exts.P1 to P11 are the exhibits marked from the side -5- Crl.A.Nos. 1690, 1691 & 1709 of 2006 of prosecution. MO1 to MO10 are the material objects. After going through the evidence and the documents, the trial court found that the accused committed the offence under Section 55 (b) and 8(2) of the Abkari Act. The accused were sentenced to undergo simple imprisonment for four years and to pay a fine of Rs.1,00,000/- each, in default to undergo simple imprisonment for a period of six months. Aggrieved by the conviction and sentence, the accused filed this appeal. 4. Heard the learned counsel for the appellants and the learned Public Prosecutor. 5. The counsel for the appellants submitted that the entire prosecution is vitiated for the simple reason that an Assistant Excise Inspector detected the offence. The counsel submitted that the Assistant Excise Inspector is not an authorised officer on the date of detection in this case. The detection was in the year 2003 and the Assistant Excise Inspector was authorised -6- Crl.A.Nos. 1690, 1691 & 1709 of 2006 only in 2009. The Public Prosecutor, on the other hand, supported the prosecution case and submitted that there is oral and documentary evidence to prove the case. It is submitted that no prejudice is cased to the accused because of the reason that the detection was conducted by the Assistant Excise Inspector. 6. It is a settled position that till 2009 the Assistant Excise Inspector is not an authorised officer as per the Abkari Act for search, arrest and seizure. This point is considered by this Court in several decisions. In **Bhaskaran v. State of Kerala [2018 (4) KLT 894]** and in **Subrahmaniyan v. State of Kerala [2010 (2) KLT 470]** and in **Sasidharan v. State of Kerala [2012 (2) KLT 392]** this Court considered this point. The relevant portion of the judgment in **Bhaskaran’s case** (supra) is extracted hereunder : -7- Crl.A.Nos. 1690, 1691 & 1709 of 2006 “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 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 SC No.885 of 2005 on the files of the Additional Sessions Judge Fast Track Court No.II, Palakkad 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 -8- Crl.A.Nos. 1690, 1691 & 1709 of 2006 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. 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.” 7. 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 -9- Crl.A.Nos. 1690, 1691 & 1709 of 2006 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 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 -10- Crl.A.Nos. 1690, 1691 & 1709 of 2006 the Assistant Excise Inspector to perform the duties under the Act 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, sealing and -11- Crl.A.Nos. 1690, 1691 & 1709 of 2006 production of the accused and properties before Court, done by the Assistant Excise Inspector, would be well within his powers.” 8. In the light of the above settled position, the entire prosecution is vitiated for the simple reason that the search, seizure and the arrest is by an officer, who is not authorised. For that simple reason itself, the accused are entitled acquittal. Therefore, these appeals are to be allowed. These Criminal appeals are allowed. The conviction and sentence imposed on the appellants as per judgment dated 21.08.2006 in SC No.885 of 2005 on the files of the Additional Sessions Judge Fast Track Court No.II, Palakkad are set aside. Accused are set at liberty. The bail bond, if any, executed by the accused are cancelled. sd/- ## **P.V.KUNHIKRISHNAN** ## **JUDGE** das