Prabhakaran Kottoorayyathu Kizhakathil v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942** ## **CRL.A.No.2407 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 1754/2003 DATED 16-11-2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM** **AGAINST THE ORDER/JUDGMENT IN CP 121/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, KARUNAGAPPALLY** ## **APPELLANT:** **PRABHAKARAN KOTTOORAYYATHU KIZHAKKATHIL, PAVUMBA VADAKKUMMURI, PAVUMBA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT.** **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENT:** **STATE OF KERALA REP. BY THE EXCISE INSPECTOR, KARUNAGAPPALLY EXCISE RANGE, KOLLAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** ## **SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A. No.2407 of 2006 2 ## **P.V.KUNHIKRISHNAN, J. =================== Crl.A. No.2407 of 2006** ## **=================== Dated this the 15[th] day of December, 2020** ## **J U D G M E N T** Appellant is the accused in S. C. No. 1754/2003 on the file of Additional District and Sessions Judge, (Adhoc-II), Kollam. The above case is charge sheeted by the Excise Inspector, Excise Range, Karunagappally against the appellant alleging offence punishable under Section 8 (1) of the Kerala Abkari Act. 2. The prosecution case is that, the Assistant Excise Inspector of Excise Range, Karungappally found the accused in possession of a can containing 5 litres of arrack on 07.09.2002. Hence, it is alleged that the accused committed the offence. 3. To substantiate the case, prosecution examined PW1 to PW6. Exhibit P1 to P4 are the exhibits marked on Crl.A. No.2407 of 2006 3 the side of the prosecution. MO1 is the material object. 4. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 8(2) of the Kerala Abkari Act. The accused is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused is directed to undergo simple imprisonment for one year. 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, the detection, search, seizure and arrest in this case is by Assistant Excise Inspector and he is not authorized for detection, search, seizure and arrest till 08.05.2009 as per Abkari Act. The learned counsel submitted that, on that ground itself, the accused is entitled to the benefit of doubt. The learned counsel also submitted that, the arrest memo is not produced and marked in this case to prove Crl.A. No.2407 of 2006 4 the arrest. The learned counsel also submitted that, the forwarding note is also not marked in this case. 7. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the offence against the appellant and there is nothing to interfere with the conviction and sentence imposed by the lower court. 8. The point for consideration in this appeal is whether the accused committed the offence under Section 8(1) & (2) of the Abkari Act. 9. Admittedly, the detection, search, seizure and arrest in this case is by the Assistant Excise Inspector. An Assistant Excise Inspector is not a competent person to conduct detection, search, seizure and arrest in Abkari cases till 08.05.2009. Admittedly in this case the seizure was on 07.09.2002. On that ground itself, the prosecution against the accused is vitiated. 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 Crl.A. No.2407 of 2006 5 Court considered this point. 10. The relevant portion of the judgment in _**Bhaskaran’s case**_ (supra) is extracted hereunder : “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 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 Crl.A. No.2407 of 2006 6 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. 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 for. Accordingly, this appeal is allowed.” ## 11. 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, Crl.A. No.2407 of 2006 7 imposing 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 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 Crl.A. No.2407 of 2006 8 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 production of the accused and properties before Court, done by the Assistant Excise Inspector, would be well within his powers.” 12. In the light of the above authoritative judgments of this Court, the trial in this case is vitiated. Crl.A. No.2407 of 2006 9 13. Moreover, the forwarding note is also not produced and marked in this case. The importance of forwarding note is also considered by this Court in several decisions. 14. In abkari cases, forwarding note is important because the specimen seal used by the detecting officer will find a place in it. It is the fundamental duty of the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the analyst. Forwarding note is one of the links to prove the prosecution case in abkari cases. 15. This Court in several decisions considered the relevancy of the forwarding note. Some of the decisions are _**Gireesh @ Manoj v. State of Kerala (2019 (4) KLT 79), Vijayan @ Pattalam Vijayan and another v. State of Kerala (2018 (2) KHC 814) and Prakasan and another v. State of Kerala (2016 KHC 96)**_ . The relevant portion of the judgment in _**Gireesh's case**_ (supra) extracted hereunder: “14. There is another lacuna in the Crl.A. No.2407 of 2006 10 prosecution case. The copy of the forwarding note prepared by PW5 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See Prakasan v. State of Kerala (2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16)).” 16. Moreover, the arrest memo is also not produced and marked in this case. The importance of arrest memo is also considered by this Court in several decisions. This Court in _**Sathyan v. State of Kerala [2015 (1) KLT 586] and in Ramankutty v. Excise Inspector, Chalannur Range [2013 (3) KHC 308]**_ considered about the importance of arrest memo in Abkari cases. To prove the arrest, this court observed that, the arrest memo is necessary. The relevant paragraph in _**Ramankutty v. Excise Inspector, Chalannur Range**_ Crl.A. No.2407 of 2006 11 ## _**[2013 (3) KHC 308]**_ is extracted hereunder. "7. It is pertinent to note that the 'arrest memo', a crucial document which is required to be prepared contemporaneously at the time of arrest to show the genuineness of arrest, is seen not produced before the Trial Court. Prosecution has no case that though the arrest memo had been prepared at the time of the arrest and seizure, it could not be produced before the Trial Court. So it can be safely concluded that it was not prepared at the time of alleged arrest. It is the violation of one of the mandatory requirements of arrest to be followed in all cases of arrest, which is made mandatory by the Supreme Court in D.K. Basu v. State of West Bengal. The specific case of the prosecution is that the Revision Petitioner, while coming through a public road carrying a plastic can containing 2 litres of arrack in his hand, was arrested from a road and seized the said contraband by the Preventive Officer and party. Therefore, I am of the opinion that the arrest with the contraband in his hand is the basis of the prosecution case on which the entire case has been built up. If the arrest is not proved beyond reasonable doubt, the entire case set up by the prosecution will fall to ground. It is also pertinent to note that there is no evidence to show that one friend or relative or other person known to him was informed of the arrest of the Revision Petitioner, immediately after the arrest in compliance with another mandatory requirement of arrest in the Supreme Court decision in D.K.Basu's case. It is apposite to have a look at the said directions of the Supreme Court which read as follows: " That the Police Officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the Crl.A. No.2407 of 2006 12 locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee." The prosecution has no case that they have complied the said directions. I am of the opinion that the non-compliance of the mandatory requirements to be complied at the time of arrest speaks volumes doubting the genuineness of the arrest and it is fatal to prosecution case, as the seizure of the contraband has no existence at all without proving the factum of arrest, beyond reasonable doubt." 17. In the light of the above discussions, I think the appellant in this case is entitled to the benefit of doubt. Therefore, this criminal appeal is allowed. The conviction and sentence imposed on the accused as per judgment dated 16.11.2006 in S. C. No. 1754/2003 on the file of Additional District and Sessions Judge, (Adhoc-II), Crl.A. No.2407 of 2006 13 Kollam is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is canceled. **(Sd/-) P.V.KUNHIKRISHNAN, JUDGE** LU