Raghavan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942** ## **CRL.A.No.2495 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 220/2006 DATED 30-11-2006 OF ADDITIONAL SESSIONS JUDGE (ADHOC)-1, KOTTAYAM** **AGAINST THE ORDER/JUDGMENT IN CP 8/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KANJIRAPPALLY** ## **APPELLANT:** **RAGHAVAN, S/O. VELUTHAKUNJU, MOOLEVADAKKETHIL HOUSE,, PARATHANAM KARA, MUNDAKKAYAM.** ## **BY ADV. SRI.V.K.SUNIL** ## **RESPONDENT:** **STATE OF KERALA REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SRI.D.CHANDRASENAN, SR.PP, SMT.K.SEENA FOR APPELLANT** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.2495 OF 2006 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## CRL.A.No.2495 OF 2006 ------------------------------- ## **JUDGMENT** Dated this the 23rd day of February 2021 Appellant is the accused in S.C.No.220/2006, on the file of the Additional Sessions Judge (Adhoc)-1, Kottyam. The above case is charge sheeted by the Excise Circle Inspector, Ponkunnam against the appellant alleging the offences punishable under Section 55(a) read with Section 8(1) and (2) of the Abkari Act. 2. The prosecution case is that on 28/8/2003 at about 5.10pm, the accused was found in possession of a bottle containing 375ml of arrack kept hidden under his waist. Hence, it is alleged that the accused committed offences punishable under Section 55(a) of the Abkari Act. 3. To substantiate the case, the prosecution examined PW1 to PW5. Exts.P1 to P6 were also CRL.A.No.2495 OF 2006 3 marked on 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 punishable under Section 55(a) 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/-. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for a further period of three months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed by the accused in this case. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The counsel for the appellant submitted that, in this case, forwarding note and property list are not marked. The counsel also submitted that the Preventive Officer registered the case as evident from Ext.P5 crime and occurrence report. Therefore, the entire prosecution is vitiated because the Preventive CRL.A.No.2495 OF 2006 4 Officer is not an authorised person to register the case as per the Abkari Act. 7. The learned Public Prosecutor submitted that, based on the oral and documentary evidence, the offence against the accused is proved, and there is nothing to interfere with the conviction and sentence imposed by the trial court. 8. Admittedly, the forwarding note is not produced and marked by the prosecution in this case. The relevancy of forwarding note is considered by this court in several judgments. _9_ . 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. 10. This Court in several decisions considered the relevancy of the forwarding note. Some of the CRL.A.No.2495 OF 2006 5 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 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)).”_ 11. Moreover, the property list is also not produced and marked. There is some relevancy for the property list in Abkari cases. If that is not produced CRL.A.No.2495 OF 2006 6 and marked that is fatal to the prosecution. 12. Admittedly, the property list is not marked in this case. The relevancy of property list in abkari cases is considered by this Court in several judgments. Once a contraband article is seized from the possession of the accused, it should be produced before the Court concerned forthwith. When the property is produced before the Court, it will be produced along with a property list. The trial Court and the appellate Court can verify the date on which the property reached the Court only by going through the endorsement in the property list. Simply because the witnesses deposed that the property reached the Court on such and such date, it cannot be believed safely. When there are documents to prove that the property is reached the Court on a particular date and the same is not marked by the prosecution, according to me an adverse inference can be taken under Section 114(g) of the Evidence Act, against the prosecution. Simply because the witnesses deposed that, the property reached the CRL.A.No.2495 OF 2006 7 Court on such and such date, the same is not acceptable unless the property list is produced and marked in cases like this. Admittedly the property list is not marked in this case. Therefore, this Court is handicapped in ascertaining the date on which the property is produced before the Court. It is now settled by a catena of decision of this Court, that the property should be produced before the Court forthwith and if the same is not produced, that is fatal to the prosecution. To find out when exactly the property reached the Court, the property list is relevant. If property list is not produced and marked by the prosecution, that itself is a ground for acquittal. 13. In addition to all this the Preventive Officer registered Ext.P5 crime and occurrence report. The Preventive Officer is not an authorized person to register the crime as per the Abkari Act. That will go the root of the case. 14. Admittedly, the Preventive Officer registered the case. According to him, he was in charge of Excise CRL.A.No.2495 OF 2006 8 Inspector on that day. But when the Abkari Act authorizes certain person to do certain activities, simply because the Preventive Officer is in charge of the Excise Inspector, he can not register a case. This point is considered by this Court in judgment dated 21.12.2015 in Crl.Appeal.No.300/2006. The relevant portion of the judgment is extracted hereunder; “9. After having heard learned counsel for the appellant and the learned Public Prosecutor and having perused the records and provisions of the Act, there seems to be some force in the submission of the learned counsel for the appellant. To understand the position as contended by the learned counsel for the appellant, reference to the provisions is required. First among them being the definition of 'Abkari Officer' as contained in Section 3(2) of the Abkari Act which reads as follows:- “3(2) Abkari Officer:- “Abkari Officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5.” ## Section 3(6) defines 'Abkari Inspector' as follows: “3(6) Abkari Inspector.- “Abkari Inspector” CRL.A.No.2495 OF 2006 9 means an officer appointed under Section 4, clause (d).” ## Section 4 reads as follows:- - “4. The Government may, by notification in the Gazette:- - (a) The Government may appoint an officer to control the administration of the Abkari Department:- Appoint an officer, who shall be styled the commissioner of Excise and who shall, subject to the general control of the Government have Control of the administration of the Abkari Department and of the collection of the Abkari Revenue or of both; - (b) May appoint any person other than the Commissioner to perform all or any of his duties:- Appoint any person other than the Commissioner of Excise to exercise all or any of the powers and to perform all or any of the duties of the Commissioner of Excise, subject to the control of the Government. - (c) May withdraw Abkari powers from Commissioner or other officer appointed under clause (a) or clause (b):- Withdraw from the Commissioner or other officer appointed under clause (a) or clause (b) any or all of his powers in respect of the Abkari Revenue; - (d) May appoint officer to take action under Sections 40 to 53:- Appoint officers to perform the acts and duties mentioned in Sections 40 to 53 inclusive of this Act; - (e) And subordinate officers:- Appoint subordinate officers of such classes and with such designations, powers and duties under this Act as the Government may think fit. - (f) May appoint any officer of Government or persons to act as above:- Order that all or any CRL.A.No.2495 OF 2006 10 of the powers and duties assigned to any officer under clauses (d) and (e) of this section shall be exercised and performed by any Officer of Government or any person. - (g) Delegate to any Abkari Officer all or any of their powers under this Act.” It may be noticed at once that Abkari Inspector means an officer appointed under Section 4 clause (d). It means those officers mentioned in Sections 40 to 53 inclusive of the Act. So that Abkari officers empowered to act under Sections 40 to 53 alone can qualify as Abkari Inspector. Section 5 reads as follows: “5. The Government may, from time to time, make rules:- (1) Prescribing the powers and duties under this Act to be exercised and performed by Abkari Officers of the several classes; and (2) regulating the delegation by the Government or by the Commissioner of Excise of any powers conferred by this Act or exercised in respect of Abkari Revenue under any law for the time being in force.” The notification issued in pursuance to the above provision, S.R.O. 234/1967 which was in force as on the date of incident in this case contained entry No.12 which has already been quoted. One may look into entry No.8 in the above notification which reads as follows: 8. All officers of the Excise Department not below the rank Within the areas of Excise Inspectors to perform for which they CRL.A.No.2495 OF 2006 11 the acts and duties mentioned are appointed. in Sections 40 to 53 inclusive of the Act. Therefore, the distinction between entries 8 and 12 is conspicuous. Entry No.8 in the notification says that all officers of the Excise Department not below the rank of Excise Inspectors can perform the acts and duties mentioned in Sections 40 to 53 of the Act. Entry No.12 says that Preventive Officer can only exercise powers for the purposes of Sections 31,32, 34, 35, 38, 39, 53 and 59. Going by the scheme of the Act, Preventive Officer can take such steps so as to prevent the commission of crime, even arrest the accused without warrant. Their power ceases when they produce the articles and the accused before the Excise Inspector and thereafter they cannot proceed to exercise powers under Sections 40 to 53 of the Act.” 15. The above judgment squarely cover the point raised by the appellant. Section 40 of the Abkari Act says about the procedure on arrest and seizure. A Preventive Officer is authorized as per the Abkari Act to arrest and seize contraband articles. But there is no authorization to the Preventive Officer to do the activities prescribed under Section 40 of the Abkari Act. The Preventive Officer could not assume charge simply because the excise officer is not present in the office. Without authorization he cannot register a case. CRL.A.No.2495 OF 2006 12 If an unauthorized person register a case, it will go to the root of the case. Hence, I think the appellant in this case is entitled to the benefit of doubt. 16. In the light of the above discussions, I think the appellant is entitled to the benefit of doubt. Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant/accused as per the judgment dated 30.11.2006 in S.C.No.220/2006, on the file of the Additional Sessions Judge (Adhoc)-1, Kottyam is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is cancelled. **Sd/-** ## **P.V.KUNHIKRISHNAN** **JUDGE** ska