Pathiyarath Karunakaran @ Karunan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY,THE 18TH DAY OF FEBRUARY 2019 / 29TH MAGHA, 1940 ## CRL.A.No. 1502 of 2006 AGAINST THE ORDER/JUDGMENT IN SC 491/2002 of ADDITIONAL DISTRICT COURT (ADHOC)-III, THALASSERY DATED 06-07-2006 ## APPELLANT/ACCUSED: PATHIYARATH KARUNAKARAN @ KARUNAN, AGED 70 YEARS, AGRICULTURE, PATHIYARATH HOUSE,, EDAKKOTTA, ALACHERY P.O., KOLAYAD AMSOM,, ALACHERY DESOM, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.I.V.PRAMOD RESPONDENT/S: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. SMT.RAHANA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl. A. No. 1502 of 2006 -2- ## **JUDGMENT** The appellant is the accused in S.C. No. 491 of 2002 on the file of the Additional Sessions Court (Adhoc-III), Thalassery. The case was charge-sheeted by the S.I of Police, Peravoor in Crime No. 72 of 2002 for an offence punishable under Section 8(2) of the Abkari Act. 2. The case of the prosecution is as follows: The accused was found in possession of 8 litres of country made arrack on 04.04.2002 at about 5 p.m., near his house at Edakkode, Alachery. 3. The investigation was conducted by the SI of Police, Maloor and charge was laid before the Judicial First Class Magistrate, Kuthuparamba, who has committed the case for trial to the Sessions Court, Thalassery. On the side of the prosecution, Pws 1 to 4 were examined and Exts.P1 to P7 and MO1 were marked. No defence evidence was adduced. 4. After the closure of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C and he pleaded not guilty to the charges levelled against him. 5. The learned Sessions Judge, as per judgment dated 06.07.2006 found the accused guilty of the offence and convicted and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) and in default to pay the fine, to undergo simple imprisonment for one month. Set off was Crl. A. No. 1502 of 2006 -3- also allowed. 6. The learned counsel for the appellant contended that PW1 has not strictly complied with the statutory formalities for detecting the offence, that sampling of the articles was not properly made. The sample was not sealed and labelled properly. He has also contended that the delay in forwarding the articles to the court is not explained and that there is no evidence to show that the articles were in proper custody till it was sent for analysis. He has further contended that the evidence of PW1, the sole eye witness who supported the prosecution case, contains full of inconsistencies and contradictions and that no satisfactory reasoning is given for Pws 2 and 3 to turn hostile to the prosecution. 7. PW1 is the Detecting Officer. Pws 2 and 3 are attestors of Ext.P2. They turned hostile to the prosecution. But they admitted their signature in Ext.P2. PW3 admitted that he signed Ext.P2 from a rubber garden. PW4, the SI of Police, Maloor Police Station has investigated the case as directed by the Peravoor CI and he inspected the place of occurrence and prepared Ext.P7 scene mahazar, questioned the witnesses and recorded their statement. 8. PW1 has deposed that on 4.04.2000, while he along with his police party were on patrol duty, got an information that the accused is selling country arrack near his house at Edakkotu. He reached near the Crl. A. No. 1502 of 2006 -4- house of the accused at 5 p.m. and found the accused coming opposite to the police party holding a white can of about 10 litres of capacity. On seeing the police, the accused attempted to run away. The police party intercepted the accused and in the presence of the witnesses, he took the can from the accused, opened the cork and on inspecting the same, found 8 litres of country arrack in that can. He tested the contents by tasting and smelling and found that it contains country arrack. Then he ascertained the name and address of the accused and arrested as per Ext.P1 arrest memo. From the can, he took the sample of 375 ml in a bottle of 375 ml and sealed the sample bottle and can with residue arrack and affixed label on the sample bottle and can containing the signatures of himself, the accused and the witnesses. He seized the contraband article and the can as per Ext.P2 seizure mahazar. Then he reached the station and registered Ext.P3 FIR. He produced the thondi articles before court as per Ext.P4 property list. He has given the original of Ext.P5 forwarding note for sending the sample for chemical examination. As per Ext.P2, PW1 identified the accused as the person whom he arrested and MO1 can which he seized was from the accused. 9. Ext.P6 is the Chemical Analysis report and it shows that the sample contains 34.78% by volume of Ethyl alcohol. PW1 has reported the seizure of the contraband article on the very next day ie., 05.04.2002. The FIR was also reached the court on 05.04.2002. The Crl. A. No. 1502 of 2006 -5- seized property and the sample were also produced before court on the very next day. 10. PW1, the Special Branch Inspector, Kasaragod is the Detecting Officer in this case. PW4, the Circle Inspector of Maloor Police Station, has investigated the case as directed by the Peravoor CI. In fact, the offence was conducted within the jurisdiction of Maloor Police Station. According to the learned counsel for the appellant, PW1 has no statutory right to arrest or detect the offence and he has not strictly complied with the statutory formalities. In support of his contention, he has placed reliance on the decision reported in _**Jil v. State of Kerala**_ [2017 (3) KLT 156], wherein it is held that only Police Officers of and above the rank of Sub Inspectors-in-charge of law and order, and working in the General Executive Branch of the Police Department can discharge the functions as Abkari Officers. Police Officers of the Narcotic Cell, which is a special wing of the Police Department, cannot be said to be Police Officers-incharge of law and order and working in the General Executive Branch of the Police Department. The aforesaid notification would empower only the officials of Excise Department from Excise Guard to the Commissioner of Excise, to discharge the various functions under the Kerala Abkari Act. Police Officers or Officers of the other Departments were not given powers as per the Government Notification. Even Assistant Excise Inspector is not given powers to discharge the functions Crl. A. No. 1502 of 2006 -6- under the Kerala Abkari Act under the said Government Notification. 11. In _**Mahesh M.K v. State**_ (2017 (1) KHC 120), it is held that a Police Officer appointed as an Abkari Officer as per the notification is not an Abkari Officer everywhere, that he is an Abkari Officer only within his territorial jurisdiction, and that he cannot investigate into an offence committed outside his jurisdiction even upon the orders of his superior Officers. The same view has been reiterated in the decisions of this Court reported in _**Saji @ Kochumon v. State of Kerala**_ (2010 (3) KLT 471) and _**Narayankutty v. State of Kerala**_ (2015(1) KHC 702). 12. As per Section 4, the Government may, by notification in the Gazette, appoint Officers to perform the act and duties mentioned in Sections 40 to 53. In exercise of the powers confirmed by Section 4, the Government of Kerala issued a notification, namely, G.O(P) No.69/96/TD dated 29.3.1996. The notification was published in the Gazette as SRO No.321/96. As per the notification, the Government of Kerala had appointed all police officers of and above the rank of Sub Inspector of Police in charge of law and order and working in the Central Executive Branch of the Police Department to be Abkari Officers under their respective jurisdiction for the purposes of Sections 31 to 35, 38,40 to 53 and 59 of the Abkari Act and to exercise all the powers and to discharge all the duties conferred and imposed on the Abkari Officers in the sections aforesaid. The appointment of police officers as per the Crl. A. No. 1502 of 2006 -7- notification as “Abkari Officers” is only to exercise the powers within their respective jurisdiction. The 'jurisdiction' referred to in the notification is the territorial jurisdiction. 13. PW1 is the Special Branch Inspector, Kasaragod. The investigation conducted by an incompetent officer of the Police Department will vitiate the whole prosecution. As per the evidence, PW4 has conducted the investigation as per the direction of the C.I of Police, Peravoor Police Station. There is no provision either in the Abkari Act or no notification was issued by the Government to confer jurisdiction to the Abkari Officers outside the jurisdictional limit. Needless to say that the Government of Kerala alone is empowered to appoint an Abkari Officer. In the absence of a fair investigation, there can be no fair trial. In the result, this appeal is allowed and the conviction and the sentence passed against the petitioner in S.C. No. 491 of 2002 by the Additional Sessions Court (Adhoc-III), Kozhikode is set aside. The appellant is acquitted under Section 386(b)(i) Cr.P.C of the charge levelled against him. The bail bond, if any, executed by him shall stand cancelled and he is set at liberty forthwith. sd/- **ANNIE JOHN, JUDGE.** _Rv_ Crl. A. No. 1502 of 2006 -8- Certified that the word 'Kozhikode' used in the last paragraph of the judgment dated 18.02.2019 in Crl. A. No. 1502/2006 shall stand corrected as 'Thalassery' vide order dated 13.08.2019 in Crl.A. No. 1502/2006. sd/- **DEPUTY REGISTRAR.** Crl. A. No. 1502 of 2006 -9-