Nagendran and Antony Thomas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **WEDNESDAY, THE 19TH DAY OF JULY 2017/28TH ASHADHA, 1939** **CRL.A.No. 1045 of 2011 (A) ---------------------------** **AGAINST THE JUDGMENT IN SC 145/2010 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-I, PATHANAMTHITTA DATED 18-06-2011** **CP 193/2008 of JUDICIAL FIRST CLASS MAGISTRATE, THIRUVALLA** **APPELLANT(S)/ACCUSED NOS.1 & 2 :- ------------------------------** **1. NAGENDRAN, AGED 36 YEARS, S/O.RAJAGOPAL, PONNALAYAM VEEDU, ULIYANNOOR, KADUNGALLOOR, PARAVOOR TALUK,ALUVA.** **2. ANTONY THOMAS, AGED 26 YEARS, S/O.THOMAS, KALATHIL VEEDU, THATHAMPALLI WARD, AMBALAPPUZHA TALUK, ALAPPUZHA.** ## **BY ADV. SRI.NIREESH MATHEW** ## **RESPONDENT/COMPLAINANT :-** **--------------------------** **STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, THIRUVALLA EXCISE RANGE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R BY SRI.ALEX M.THOMBRA, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rkj** ## **P.UBAID, J.** ============================ **Crl.Appeal No.1045 of 2011** ============================ Dated this the 19[th] day of July, 2017 ## **JUDGMENT** The appellants herein are the two accused in S.C.No.145 of 2010 of the Court of Session, Pathanamthitta. They challenged the conviction and sentence against them under Section 8(2) of the Kerala Abkari Act (“the Act”). They faced prosecution in the court below on the allegation that at about 6.30 a.m. on 10.04.2008, they were found transporting huge quantity of 7000 litres of spirit, contained in 200 plastic cans. The offence was detected by the Excise Inspector of the Thiruvalla Excise Range during usual patrol duty. He happened to intercept the lorry No.TN09-AD 8397 at the side of the Kuttoor bridge on MC road. When he inspected the said tanker lorry, the Excise Inspector found 200 cans of 35ml capacity containing huge quantity of spirit, inside the tanker. The first accused was the driver of the said lorry, and the second accused was the cleaner. The Excise Inspector arrested the two accused on the spot, and Crl.Appeal No.1045 of 2011 2 seized the contraband articles including the tanker lorry as per a mahazar. He produced the accused and the properties at the Range Office without any delay, and he registered the crime and occurrence report. A Circle Inspector of Excise took over investigation, and after investigation, the Inspector submitted final report in Court. On committal, the case came up before the Court of Session, from where it was made over to the learned Additional Sessions Judge, Adhoc-I, Pathanamthitta for trial and disposal. 2. The final report in this case was filed by the Excise Inspector under Sections 55(a) and 8(2) of the Act. The definite allegation in the final report is that the two accused were found transporting 7000 litres of spirit on 16.11.2010. The learned trial Judge framed a charge against the two accused under Section 55(a) as well as Section 8(2) of the Act to which the accused pleaded not guilty. The wordings in the charge are as follows; “That you A1 Nagendran was seen driving tanker lorry No.TN09-AD 8397 with forged registration number, and that A2 was the cleaner of the lorry on 10.04.2005 at 6.30 Crl.Appeal No.1045 of 2011 3 a.m............., and seen 200 cans having capacity of 35 litres each containing full of arrack to the tune of 7000 litres concealing in the tanker of the lorry, and transported the same, and seen in possession of the spirit. That you have committed offences punishable under Sections 55(a) and 8 (1)(2) of the Abkari Act................” 3. On a perusal of the Court charge, I find that the charge was not properly and legally framed by the trial court. It appears that the learned trial Judge was not certain whether the offence allegedly committed by the accused will come under Section 55(a) of the Act, or under Section 8(2) of the Act. The learned trial Judge quite mechanically, without application of mind, and without perusing the prosecution records, or examining what exactly are the allegations, framed a charge under both the sections without understanding whether the article alleged to have been transported by the accused is spirit or arrack. 4. The prosecution examined 6 witnesses, and proved Exts.P1 to 17 documents. When examined under Section 313 Cr.P.C., the accused denied the incriminating Crl.Appeal No.1045 of 2011 4 circumstances. The accused examined one witness as DW1 in defence. There was no property to be identified during trial because, the huge quantity of spirit contained in 200 cans had already been produced before the Deputy Commissioner of Excise for necessary action under Section 53A of the Act. On an appreciation of the evidence, the trial court found the accused not guilty under Section 55(a) of the Act, and accordingly, acquitted them of the said offence. But, they were found guilty under Section 8(2) of the Act. On conviction, they were sentenced to undergo rigorous imprisonment for six years each, and to pay a fine of Rs.2,00,000/- (Rupees Two lakhs only) each by judgment dated 18.06.2011. The said judgment of conviction is under challenge in this appeal. 5. On hearing both sides, and on a perusal of the entire materials, I find that there are serious illegalities and infirmities in this case. First of all, I thought of remanding the case to the court below for a proper procedure after framing a proper and legal charge. But I realised that it would not serve any purpose because, there is yet another Crl.Appeal No.1045 of 2011 5 serious legal infirmity which cannot be cured by any procedure. 6. PW1 is the Excise Inspector who detected the offence, and PW2 is the Preventive Officer who assisted him. PW3 and PW4 examined as independent witnesses turned hostile. PW5 is the Excise Circle Inspector who investigated the case as authorised by the Assistant Commissioner of Excise, and PW6 is the Deputy Commissioner of Excise who dealt with the properties in this case under Section 53A of the Act. PW5 claims to have conducted investigation as authorised by the Assistant Commissioner of Excise. This Court has consistently held that only the competent officers of the concerned range can investigate crimes under the Act. Investigation cannot be authorised by the superior officers. In short, the superior officers cannot assume the role of the Government. Anyway, let me come to the other serious legal infirmity as regards the procedure under Section 53A of the Act. 7. This Court has consistently held in so many decisions that only the officers specifically authorised and Crl.Appeal No.1045 of 2011 6 appointed by the Government for various functions under the Kerala Abkari Act, can discharge the functions under the Act. Ofcourse, the detection in this case was made by a competent officer, and the crime was also registered by him. But, the properties involved in this case were produced before the Deputy Commissioner of Excise, instead of producing the properties before the authorised officer appointed by the Government under Section 67B of the Act. In exercise of the powers conferred under Section 67B of the Act, the Government of Kerala has appointed Assistant Commissioners of Excise as authorised officers. This has been clarified by this Court on many occasions, and in **Chandran v. State [2016(4) KLT 727]** , this Court specifically held that Deputy Commissioners of Excise, cannot discharge the functions under Section 53A of the Act. 8. Even as regards the inventory prepared by the Deputy Commissioner (PW6), there are serious doubts. Ext.P15 is the requisition made by the Deputy Commissioner of Excise to the learned Judicial First Class Magistrate having jurisdiction on 01.01.2009. This requisition was received in Crl.Appeal No.1045 of 2011 7 the Court of the learned Magistrate only on 17.01.2009 as revealed by the Court seal. The office order of the learned Magistrate on the requisition is seen made on 19.02.2009. Ext.P14 is said to be the inventory prepared by the Deputy Commissioner. According to him, the inventory was prepared on 01.01.2009. This inventory is seen certified by the learned Magistrate only on 25.03.2009. The Ext.P14 inventory shows that this inventory was also received in Court on 17.01.2009. It is not known how the inventory prepared on 01.01.2009 happened to be produced before the Court on 17.01.2009, along with the requisition made on 01.01.2009. Even the endorsement made by the learned Magistrate is seen dated 19.02.2009. But the inventory was certified only on 25.03.2009. The detection in this case was made on 10.04.2008. The total quantity of spirit entered in the inventory is only 5493.8 litres. The total quantity of the sample taken is only 1500 ml. It is not known what happened to the remaining quantity of spirit. Though the detection was made on 10.04.2008, PW6 found it convenient to prepare the inventory after eight months. Even this Crl.Appeal No.1045 of 2011 8 inventory was certified by the learned Magistrate after three months. I find definite reason to believe that the Deputy Commissioner had not seen the properties, when he prepared the inventory on 01.01.2009. Though he claims to have made the inventory on 01.01.2009, what is really probabilised by the inventory is that it was prepared only on 17.01.2009, and was produced in Court along with the requisition on 17.01.2009. Thus, there are so many doubtful circumstances regarding the preparation of the inventory by the Deputy Commissioner of Excise. I find that he prepared the Ext.P14 inventory without actually seeing and verifying the contraband articles, or that he simply put signature on the inventory prepared by the Excise Inspector. The certificate of the learned Magistrate is only regarding 5493.8 litres of spirit. 9. No value can be attached to the Ext.P14 inventory prepared by PW6, because, he is not the authorised officer appointed under Section 67B of the Act. An inventory prepared by the authorised officer under Section 53A of the Act can be accepted and admitted in Crl.Appeal No.1045 of 2011 9 evidence even without examining the person who prepared it. But, it must be an inventory prepared by the authorised officer, and the inventory must show that the authorised officer prepared it after personally seeing and verifying the contraband articles. It must also be certified by the Judicial Magistrate having jurisdiction. Here, the only requirement satisfied is that the inventory is seen certified by the learned Magistrate. But, the inventory is one prepared by an officer not authorised under the law, and the inventory also does not show that the person who prepared it had seen or verified the properties. In such a situation, no value can be attached to the Ext.P14 inventory produced by the prosecution. Practically, the finding possible is that there is nothing to show that any quantity of spirit was seized from the possession of the accused. 10. A few more words about the Court charge. The final report shows that the Excise Inspector who submitted final report is not certain whether the contraband article involved in this case is spirit or arrack. The Ext.P10 report of analysis shows that the samples were identified as Crl.Appeal No.1045 of 2011 10 spirit on analysis at the laboratory. Thus, the prosecution would proceed on the premise that the contraband article involved in this case is spirit. But the Excise Inspector who submitted final report is not certain whether it is spirit or arrack. Without understanding the prosecution case, and without even perusing the prosecution records, the learned trial Judge, quite mechanically, and without application of mind framed a Court charge wherein the things are not certain, as to whether the Court charge is under Section 55 (a) of the Act, for having possessed spirit unauthorisedly, or whether it is under Section 8(2) of the Act, for having possessed arrack. Such a Court charge cannot be accepted as a legal charge, and the accused cannot be called upon to answer such a charge. A charge framed by the Court must be definite and specific because, the object of a charge is to call upon the accused to answer certain allegations constituting a definite offence under a particular law. If the accused happened to be tried on an indefinite or illegal charge, a conviction made by the Court on the basis of such a charge cannot be sustained. I find that even if the trial Crl.Appeal No.1045 of 2011 11 court is directed to frame a proper and legal charge, the other serious legal infirmity as regards the procedure under Section 53A of the Act cannot be in any manner cured. So, the two accused will have to be acquitted. In the result, this Appeal is allowed. The appellants herein are not found guilty of the offence under Section 8(2) of the Kerala Abkari Act, and accordingly, they are acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C. The conviction and sentence against them in S.C.No.145 of 2010 of the court below will stand set aside. The accused will stand released from prosecution, and the bail bond, if any, executed by them will stand discharged. The amount, if any, deposited by the appellants in the court below as a condition for suspension of sentence will be released. Sd/- **P.UBAID, JUDGE** rkj //TRUE COPY// P.A. TO JUDGE