OBI alias Robert Rodrigues vs State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 07TH DAY OF OCTOBER 2020 / 15TH ASWINA, 1942** ## **CRL.A.No.2038 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 145/2002 DATED 27-10-2005 OF ADDITIONAL DISTRICT COURT (ADHOC-III), KASARAGODE** ## **APPELLANT/S:** **OBI @ ROBERT RODRIGOUS AGED 30 YEARS S/O.DANIEL RODGIROUS, CHAKKATTA ARAMTHODU, MMADHUR VILLAGE, KASARAGOD.** **BY ADV. SRI.I.V.PRAMOD** ## **RESPONDENT/S:** **STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.K.B.UDAYAKUMAR, SR.GP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-09-2020, THE COURT ON 07-10-2020 DELIVERED THE FOLLOWING:** Crl.A. No.2038 of 2005 2 ## **P.V.KUNHIKRISHNAN, J. =================== Crl.A. No.2038 of 2005** ## **=================== Dated this the 7[th] day of October, 2020** ## **J U D G M E N T** The appellant is the accused in S. C. No. 145/2002 on the file of Additional Sessions Judge, Adhoc-III, Kassaragod. The above case is charge sheeted against the appellant alleging offences punishable under Section 55 (a) of the Kerala Abkari Act. 2. The prosecution case is that, on 15.09.2001 at about 1.00 p.m., the accused was found in possession of 10 liter of arrack. Hence, it is alleged that the accused committed the offence under Section 55 (a) of the Kerala Abkari Act. 3. To substantiate the case, the prosecution examined PW1 to PW4. Exts. P1 to P7 are the exhibits marked on the side of the prosecution. MO1 is the material objects. Crl.A. No.2038 of 2005 3 4. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 55 (a) of the Abkari Act. He was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused was directed to undergo simple imprisonment for further period of six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant submitted that, even if the entire allegations are accepted. The offence under Section 55 (a) of the Abkari Act is not attracted. The learned counsel for the appellant submitted that, there is only the evidence of official witnesses available in this case. The learned counsel for the appellant submitted that, even though PW3 supported the prosecution, his evidence is contradictory to the official witnesses. The learned counsel submitted that, PW4 is also Crl.A. No.2038 of 2005 4 turned hostile. The leaned counsel submitted that, the Investigating Officer is not examined in this case. Therefore, the prosecution has not proved the contradictions marked through PW2 and PW4. That shows that, the way in which the learned Public Prosecutor declared PW4 as hostile is not correct. Therefore, according to the learned counsel, the independent witness deposed before the Court that, nothing is seized from the appellant. That itself is enough to give benefit of doubt to the accused. The learned counsel also submitted that, the investigation in this case is conducted by the Excise Inspector, Excise Enforcement and Anti-Narcotic Special Squad, Kasaragod. The learned counsel submitted that, he has no authorization to conduct the investigation in this case. The learned counsel also relied the judgment of this Court in _**Balachandran v. State of Kerala (2020 (4) KLT 137)**_ . 7. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the offence under Section 55 (a) of the Abkari Act. The learned Crl.A. No.2038 of 2005 5 Public Prosecutor submitted that, this Court may not interfere with the well considered judgment of the trial court _**.**_ 8. The point for consideration in this appeal is whether the accused committed the offence under Section 55 (a) of the Abkari Act. 9. Admittedly, the investigation in this case is conducted by the Excise Inspector, Excise Enforcement and Anti-Narcotic Special Squad, Kasaragod. As per the relevant notification issued in accordance to the provisions of Abkari Act, the investigation in Abkari cases can be conducted only by the Excise Inspector, in whose jurisdiction the alleged seizure has happened. Any Excise Officials can detect the offence. But the investigation can be conducted only by the jurisdictional Excise Inspector. In this case, even if, there is any authorization to the Excise Inspector, Excise Enforcement and Anti-Narcotic Special Squad, Kasaragod from his higher officers that is not sufficient, in the light of the specific provisions in the Abkari Act. This Court considered this point in _**Balachandran v. State of Kerala**_ Crl.A. No.2038 of 2005 6 ## _**(2020 (4) KLT 137)**_ . The Para No. 14 and 15 of the above judgment is extracted hereunder; _“14. S.R.O. No. 234/67, which is extracted above will show that the investigation and final report under Section 50 of the Abkari Act can be submitted by all the Officers of the Excise Department, not below the rank of Excise Inspectors within the areas for which they are appointed. 'Abkari Officer' is defined as per Section 3(2) of the Abkari Act which is extracted hereunder:_ _“Abkari Officer: means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5”_ _S.R.O.No.234/67 was issued by the Government as per S.4 of the Kerala Abkari Act. As per the above notification, all officers of the Excise Department not below the rank of Excise Inspector are authorized to perform the acts and duties mentioned in Sections 40 to 53 within the area for which they are appointed. Similarly, the Commissioner of Excise, the Joint Commissioner of Excise, Deputy Commissioners of Excise and all Assistant Commissioners of Excise to be Abkari officers under their respective denominations for the purpose of Ss.31, 32, 34, 35, 38, 39, 53, 59, 67 and 67A of the Abkari Act and to discharge of the duties conferred and imposed on Abkari officers in the Sections aforesaid. The Commissioner of Excise and the Joint commissioner of Excise are having jurisdiction throughout the State. But, Deputy Commissioners of Excise and the Assistant Commissioners of Excise have_ Crl.A. No.2038 of 2005 7 _jurisdiction only within the area for which they are appointed. Circle Inspectors of Excise, Excise Inspectors, attached to the circle and Excise Inspectors in charge of Ranges will be Abkari officers under their respective denominations for the purpose of Sections 31, 32, 34, 35, 38, 39, 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 within their respective jurisdiction. Similarly, clause 11, 12, and 13 of SRO No.234/67 give powers to different officers within their respective jurisdiction or within the area for which they are appointed._ _15. Therefore, it is clear that all Excise Department officers not below the rank of Excise Inspector can file a final report under Section 50 only if the detection is within the area for which they are appointed. Clause (8) of S.R.O.No.234/67 is clear about that. Of course, in the proviso to S.R.O.No.234/67, it is stated that, with reference to Sections 31 and 34 of the Act, there shall be no limit of jurisdiction within the Kerala State for the Abkari and other Department Officers named threin; but all persons arrested and all seizures made thereunder shall, without delay, be made over to the Excise Officer possessing local jurisdiction.”_ 10. In the light of the above judgment, I think the investigation conducted by the Excise Inspector, Excise Enforcement and Anti-Narcotic Special Squad, Kasaragod is without jurisdiction. On that single point, I think the Crl.A. No.2038 of 2005 8 accused is entitled to the benefit of doubt. Moreover he is not even examined before the Court. The appellant is prejudiced because the appellant was not able to cross examine that witness to raise this point. In such circumstances, I think the appellant is entitled the benefit of doubt. Therefore, this criminal appeal is allowed. The conviction and sentence imposed on the accused as per judgment dated 27.10.2002 in S. C. No. 145/2002 on the file of Additional Sessions Judge, Adhoc-III, Kassaragod is set aside. The accused is set at liberty. The bail bond, if any, executed by the accused, is canceled. **(Sd/-) P.V.KUNHIKRISHNAN, JUDGE** LU