P. C. Subramanian v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942** ## **CRL.A.No.2374 OF 2006** **AGAINST THE JUDGMENT IN SC 210/2004 DATED 09-11-2006 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE (ADHOC)-1, KALPETTA** ## **APPELLANT/ACCUSED:** **P.C.SUBRAMANIAN S/O.BALAN CHETTY,CHERUVATHOOR (H), THIRUNELLY,, WAYANAD DISTRICT.** ## **BY ADV. SRI.GRASHIOUS KURIAKOSE** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** ## **R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL No.2374/2006 2** ## **JUDGMENT** **Dated this the 9th day of December 2020** ... The appellant is the accused in S.C.No.210 of 2004 on the file of the Additional Sessions Judge (Adhoc)-1, Kalpetta. 2. The above case is charge sheeted by the Sub Inspector of Police, Thirunelly Police Station against the appellant alleging offence punishable under Section 55(a) of the Abkari Act. 3. The prosecution case is that, on 2.7.2003 at about 5.30 p.m., the accused was found in possession of 13 packets of Karnataka made arrack, each packets containing 100 ml., in a plastic cover for the purpose of sale, in contravention of Abkari Act and Rules. Hence, it is alleged that, the accused committed the ## **CRL.APPEAL No.2374/2006 3** said offence. 4. To substantiate the case, the prosecution examined PW1 to PW6. Exhibits P1 to P7 are the documents marked on the side of the prosecution. MO1 to MO3 are the material objects. 5. 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. The accused is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for three months. 6. Aggrieved by the conviction and sentence, this criminal appeal is filed. 7. Heard the learned counsel for the appellant and the learned public prosecutor. **CRL.APPEAL No.2374/2006 4** 8. The learned counsel for the appellant submitted that, the investigation in this case was conducted by PW6, who is an Additional Sub Inspector of Police, Mananthavady, whereas, the alleged seizure in this case is within the jurisdiction of Thirunelly police station. According to the counsel, PW6 has no jurisdiction to investigate the case and that will go to the root of the case. The counsel relied the judgment of this Court in **Balachandran v. State of Kerala** [2020(3) KHC 697]. The counsel also submitted that, there is two days delay in producing the property before the court and it is also fatal to the prosecution. 9. The learned public prosecutor submitted that, there is oral and documentary evidence to prove the case and there is nothing to interfere with the conviction and sentence ## **CRL.APPEAL No.2374/2006 5** imposed by the lower court on technical grounds. 10. The point for consideration in this appeal is whether, the appellant committed the offence under Section 55(a) of the Abkari Act. 11. Admittedly, the alleged seizure was within the jurisdiction of Thirunelly police station. But the investigation was conducted by the Additional Sub Inspector of Police, Mananthavady police station. Whether PW6 has got jurisdiction to investigate the case, is the question to be decided. This point was considered by this Court in **Balachandran's** case(supra). The relevant paragraphs of the above judgment are extracted hereunder: _**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 SRO No.234/67 is clear about**_ **CRL.APPEAL No.2374/2006 6** _**that. Ofcourse, in the proviso to SRO 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 therein; but all persons arrested and all seizures made thereunder shall, without delay, be made over to the Excise Officer possessing local jurisdiction.**_ _**16. Admittedly, in this case, final report is filed by PW5 who is the Excise Circle Inspector of Aluva Excise Range. Admittedly, arrest and seizure of the contraband article in this case happened within the jurisdiction of Excise Range, North paravur. In such a situation, PW5 has no authority or authorization to submit the final report in this case. Only charge witness No.11, the Excise Inspector of North Paravur Excise Range or any competent officers of Excise Range, North Paravur can conduct investigation and submit final report in this case. In this case, an incompetent officer filed the final report under Section 50 of the Abkari Act. It is a fundamental defect that will go to the root of the case. The Magistrate cannot take cognizance based on a final report submitted by an incompetent officer.**_ _**17. This court, in Suresh v. State of Kerala [2017(2) KHC 891] considered this point. The relevant portion of the above judgment is extracted hereunder:**_ **CRL.APPEAL No.2374/2006 7** _**15. S.31 of the Act deals with search in houses and other buildings, and S.34 of the Act deals with seizure or arrest generally. Detection can be made by the competent officers only within their jurisdiction. The proviso to the Government Order says otherwise that the said limitation prescribed by way of jurisdictional limits under the Government Order will not apply to detection made under S.31 or S.34 of the Act. If such a proviso is not there, or if such a protection is not given to detections made by other officers, law breakers can very conveniently escape by the time the right officer of the concerned Range or Circle turns up or rushes to detect the offence. That is why the Government added a proviso to the Government Order, that as regards detection under S.31 or S.34 of the Act, the limit of jurisdiction shall not apply. As regards the other powers like the power to register crimes, or the power to conduct investigation, there is no such protection or relaxation. The provision is never meant to give authority to officers not covered by the Government Order. Only those categories of officers specifically empowered and covered by the Government notification issued under S.4 of the Act can claim**_ **CRL.APPEAL No.2374/2006 8** _**the benefit of the proviso, and only those categories can detect offences under S.31 or 34 of the Act beyond their territorial limits. Such an exception under the proviso, or such a relaxation brought with a particular object, cannot be extended to other categories who are not authorized by the Government under S.4 of the Act. So, I find that the Circle Inspector of Excise who detected the offence in this case cannot find any excuse or justification under the proviso to the Government notification issued in 1967 as SRO 234/1967. I find that he was incompetent to make detection, and that investigation was also conducted by another incompetent officer. The final report was also submitted by the very same incompetent officer. The benefit of these illegalities and infirmities must necessarily go to the accused.”**_ In the light of the above judgment, I think, the appellant is entitled the benefit of doubt on this simple reason itself. An unauthorized person investigated the case and that will go to the root of the case. In such circumstances, the benefit of doubt will go in ## **CRL.APPEAL No.2374/2006 9** favour of the accused. 12. Moreover, there is two days delay in producing the article before the court. The seizure in this case was on 2.7.2003 and the property was produced before the court only on 4.7.2003. There is no explanation from the prosecution for the delay in producing the property. This point is also considered by this Court in **Sukumaran v. State of Kerala** **(2019(3) KLT 920), Ravi v. State-Sub Inspector** **of Police, Meppadi (2018(5) KHC 352)** and **Vikraman v. State of Kerala (2018(1) KLT 822).** Relevant portion of the judgment in **Ravi's** case (supra) is extracted hereunder: _“8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution_ ## **CRL.APPEAL No.2374/2006 10** _and therefore, the accused is entitled to the benefit of doubt._ _9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note.”_ Since there is no explanation from the part of the prosecution for the delay in producing the contraband article before the court, the benefit of doubt will go in favour of the appellant. 13. In the light of the above discussion, I think, the accused is entitled the benefit of doubt. Hence, this criminal appeal is allowed. The conviction and sentence imposed on the **CRL.APPEAL No.2374/2006 11** appellant as per the judgment dated 9.11.2006 in S.C.No.210 of 2004 on the file of the Additional Sessions Judge (Ahhoc)-1, Kalpetta are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled. ## **Sd/-** **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**