Prabhakaran v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944 CRL.A NO. 484 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 36/2007 OF ADDITIONAL SESSIONS COURT (ADHOC) III, MANJERI** ## **APPELLANT/ACCUSED:** PRABHAKARAN, S/O.VELAYUDHAN, THANNIKKAD VEEDU, PALLIKKAL, THIROORANGADI, MALAPPURAM DISTRICT. BY ADV SRI.BABU S. NAIR ## **RESPONDENT/STATE:** STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, PARAPPANANGADI EXCISE RANGETHROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. SRI.SANAL.P.RAJ, PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A NO. 484 OF 2008 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------Crl.Appeal No. 484 of 2008 ---------------------------------------------Dated this the 15[th] day of July, 2022** ## **JUDGMENT** The above appeal is filed by the appellant/accused against the conviction and sentence imposed on him as per judgment dated 08.02.2008 in S.C.No.36/2007 on the file of the Additional Sessions Judge, Fast Track Court No.III (Adhoc), Manjeri. The above case is charge sheeted against the appellant/accused alleging offences punishable under Section 8 (1) and (2) of the Abkari Act. 2. The prosecution case in brief is like this: On 24.05.2005 at about 1.30 pm, when the Preventive Officer of Parappanangadi Excise Range Office and party were conducting patrol duty in Peruvalloor Panchayat area, they found the accused near from Kunnathuparamba water tank having with a black can containing 4.5 litres of arrack and caused arrest after preparing necessary documents and took sample of the 3 CRL.A NO. 484 OF 2008 contents from can in a separate bottle complying the required formalities. Then the accused along with the contraband article and records were produced before court. After completing the investigation CW6 had laid charge sheet before court and the same was taken on file as C.P.No.95/2006 by the Judicial Magistrate of First Class – I, Parappananagadi on 8-11-2006. 3. To substantiate the case, the prosecution examined, PW1 to PW4. Exts.P1 to P8 are marked as exhibits on the side of the prosecution. MO1 is the material Object. After going through the evidence and documents, the trial court found that the accused committed the offence under Section 8(1) of the Abkari Act. The accused is sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,00,000/- and in default of payment of fine, he is directed to undergo simple imprisonment for another three months. Aggrieved by the conviction and sentence, this Criminal appeal is filed. 4. Heard counsel appearing for the appellant and CRL.A NO. 484 OF 2008 4 ## the Public Prosecutor. 5. The counsel for the appellant raised only one point. According to the counsel, PW4 is an Assistant Excise Inspector and he investigated and submitted final report in this case. The counsel submitted that, he is not an authorised officer. 6. The Public Prosecutor on the other hand submitted that, there is no prejudice to the appellant because the Assistant Excise Inspector investigated the case. The 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 imposed on the appellant. 7. It is a settled position that the Assistant Excise Inspector is not authorised to conduct search and seizure as per the Abkari Act till 08.05.2009. Admittedly, the detention in this case was on 24.05.2005. If that is the case, on that reason alone, the entire prosecution case is vitiated. _**In Bhaskaran**_ _**v. State of Kerala [2018 (4) KLT 894]**_ and in CRL.A NO. 484 OF 2008 5 _**Subrahmaniyan v. State of Kerala [2010 (2) KLT 470]**_ and in _**Sasidharan v. State of Kerala [2012 (2) KLT 392]**_ this Court considered this point. 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 CRL.A NO. 484 OF 2008 6 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 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 or. Accordingly, this appeal is allowed.” 8. Similarly in _**Sasidharan’s case**_ (supra) also, the same point is considered. The relevant portion is CRL.A NO. 484 OF 2008 7 ## 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, 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_ CRL.A NO. 484 OF 2008 8 _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 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_ CRL.A NO. 484 OF 2008 9 _of the accused and properties before Court, done by the Assistant Excise Inspector, would be well within his powers.”_ In the light of the above discussion, the appellant succeed and the appeal is to be allowed. Therefore, the Criminal appeal is allowed in the following manner: i. The conviction and sentence imposed on the appellant as per judgment dated 08.02.2008 in S.C.No.36/2007 on the file of the Additional Sessions Judge, Fast Track Court No.III (Adhoc), Manjeri, is set aside and the appellant is set at liberty. ii. The bail bond, if any, executed by the appellant is cancelled. Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM