Rajan @ Pichil Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 16TH DAY OF MARCH 2016/26TH PHALGUNA, 1937** **CRL.A.No. 1608 of 2004 ( )** **---------------------------** **AGAINST THE JUDGMENT IN SC 49/2002 of ADDITIONAL SESSIONS COURT (FAST TRACK COURT-I), THIRUVANANTHAPURAM DATED 19-09-2004 (C.P.NO.34/200 OF ADDL. CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM CRIME NO.111/2000 OF MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM)** **APPELLANT(S)/ACCUSED:** **--------------------** **RAJAN @ PICHIL RAJAN S/O.KOCHAPPY, MANAKKATTUVEEDU,, KORANANKUZHI, VAIKALATHUMURI,, ATTIPRA VILLAGE.** **BY ADV. SRI.V.R.GOPU** ## **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA REPRESENTED BY S.I. OF POLICE, MEDICAL COLLEGE THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SMT. V.P. SATHY** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.1608 of 2004 ---------------------------------------------Dated this the 16[th] day of March, 2016 ## **JUDGMENT** This appeal is preferred against the conviction and sentence in S.C.No.49/2002 of Additional Sessions Judge (Fast Track Court-I), Thiruvananthapuram u/s.55(a) of the Abkari Act. The charge against the appellant is that on 12.4.2000 at 11.25 a.m the appellant was found in possession of 7 ½ litres of arrack in the rubber estate of one Chandrasekharan Nair on the south eastern side of the PanavilaThampuram temple compound at Mavarthalakonam, Ulloor Village by the Asst. Sub Inspector of Police, Medical College Police Station. The accused was arrested and the contraband articles were seized, reaching at the Police Station, he registered a crime. After completing investigation, the Sub Inspector of Police, Medical College Police Station laid Crl. Appeal No.1608/2004 2 charge against the accused u/s.55(a) and (h) of the Abkari Act. 2. During trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P4 as documentary evidence. MO1 to MO3 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him u/s.313 Cr.P.C. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the appellant and sentenced to imprisonment for three years and fine of 1 lakh, in default of payment of fine, rigorous₹ imprisonment for one year. Being aggrieved by that, the accused preferred this appeal. 3. Heard both sides. According to Section 4(d) of the Abkari Act, the Government may, by notification in the Gazette, appoint officers to take action under Sections 40 to 53 of the Abkari Act. Any subordinate officers may be appointed with such designation, powers and duties under this Act from time to time as the Government may think fit. Section 5 of the Abkari Crl. Appeal No.1608/2004 3 Act prescribing the powers and duties under this Act to be exercised and performed by Abkari Officers of the several classes and 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. As per S.R.O.No.321/96 dated 29.3.1996, the Government of Kerala appointed all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department was designated as Abkari officers as per Section 5 of the Abkari Act, which reads as follows: “ **S.R.O.No.321/96.** - In exercise of powers conferred by section 4 of the Abkari Act, I of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective Jurisdiction for the purpose of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the Crl. Appeal No.1608/2004 4 duties conferred and imposed on Abkari Officers, in the sections aforesaid. This notification shall come into force with immediate effect. Explanatory Note.- The Government have decided to abolish all arrack shops in the State of Kerala from 1-4-1996. As per G.O. (MS) No.26/96.TD dated 14-2-1996, Government have announced the new Excise Policy in the year 1996-97. In order to implement the Government policy effectively the Government have decided to empower the Police Officers to register cases against violation of Excise Laws as per G.O.(MS) No.32/96/TD dated 26-2-1996. In the high level meeting of the Officers of the Excise Police and Revenue Departments convened by the Honourable Chief Minister of Kerala on 17-3-1996, it has been decided to invest the Police Officers, and Revenue Officers with power of Abkari Officers to register, investigate and prosecute all offences coming under the Abkari Act. In order to carry out the above decision a notification under Section 4 of the Abkari Act 1 of 1077 has to be issued declaring all Police Officers of and above the rank of Sub Inspector of Police in charge of law and and working in the General Executive branch of Police Department and all Revenue Officers of and above the rank of Deputy Collectors to exercise all the powers and to discharge all the duties mentioned in the sections specified in the notification.”” 4. The report of abkari officer u/s 50 of the Abkari Act confer jurisdiction on a competent Magistrate to take Crl. Appeal No.1608/2004 5 cognizance of the offence. According to S. 50(1), every investigation into the offence under this Act shall be completed without unnecessary delay and S.50 (2) says as soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward it to a Magistrate, empowered to take cognizance of the offence on a police report, which is a report in accordance with sub-s.(2) of S.173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974). A close reading of the Section shows that the Magistrate can take cognizance only on the basis of a report filed by the Abkari Officer. An Abkari Officer is defined under S.3 (2), which reads as follows: 'Abkari Officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Ss.4 or 5.' Government by notification dated 29.3.1996 authorized all police officers above the rank of Sub Inspector of Police to discharge all the duties conferred on an Abkari Officer. In this context I Crl. Appeal No.1608/2004 6 can say Assistant Sub Inspector of Police is not an Abkari Officer as defined under the Act. ## 5. A Division Bench of this Court in **Subash** v. **State of Kerala** [2008 (2) KLT 1047] held as follows: “None of the provisions in the Abkari Act gives power to any authority to issue such notification. Even Cr.P.C. does not contain any such provision conferring on the Government the power to issue notification conferring power of an officer to any other inferior officer under S.36, when only a superior officer is to exercise power of the officer in charge of a police station. Further when it specifically states that Abkari Officer must be a police officer above the rank of Sub Inspector and that a police officer below the rank of Sub Inspector of Police cannot be termed as the Abkari Officer. Irregularity in investigation is different from lack of power to initiate prosecution. S.50 of the Abkari Act says that as soon as the investigation into the offences under this Act is completed, the abkari Officer shall forward to the Magistrate empowered to take cognizance of the offence on a police report a report in accordance with the offence on the basis of a report by an officer not authorized under law. The Magistrate has no power to take out cognizance of the case on the report of an officer other than an Abkari Officer and it will go to the root of the matter. In this connection we also refer to S.199 (1) and S.461(d) of Cr.P.C. An officer other than Abkari Officer as defined in the Act cannot file a report even if investigation is conducted by an Abkari Oficer. When a report by a specifically empowered officer is a condition precedent for taking cognizance of an offence, trial on a report by Assistant Sub Inspector of Police is void. Lack 7 Crl. Appeal No.1608/2004 of total jurisdiction for taking cognizance of an offence other than specially empowered officer is not an irregularity covered under Chapter XXXV of Cr.P.C.” The power of Abkari officers or empowered officers to deal with the offences under the Abkari Act are specifically mentioned in the Abkari Act. Therefore, they have to investigate such offences according to the provisions of that Act alone. When a special Act empowers any category of officers to conduct investigation, it is presumed that investigation can be conducted only by such class of officers alone and not by an ordinary police officer mentioned in the Cr.P.C. These statutory provisions mentioned u/s.4 of the Abkari Act show that the ordinary police officers vested with the power of investigation cannot conduct a parallel investigation in terms with the Abkari Act. Therefore, any investigation conducted by a non-empowered officer or any officer lower than the rank of the police department or any class or designation or any officer or designation not empowered u/s.4 shall presume 8 Crl. Appeal No.1608/2004 that they have no such power to conduct investigation. There is no provision in the Abkari Act to approve such illegal investigation by a non-empowered officer. 6. In this context, I have examined the seizure in this case. The evidence of PW5 shows that while he was working as Asst. Sub Inspector of Police, Medical College Police Station, Thiruvananthapuram on 12.4.2000 at 11 a.m., he conducted patrol duty and reached near Panavila Thampuran temple, at that time the appellant was found carrying MO1 cannas and proceeded through the rubber plantation on the south east of the temple. On seeing the Police Party, he tried to escape from there with MO1 and MO2. PW5 intercepted him and seized the arrack. The accused was arrested and the money found in his pocket and the contraband articles were taken into custody after preparing Ext.P1 mahazar. The independent witness present there attested Ext.P1, reaching at the Police Station, he registered crime. Ext.P4 is the FIR. He entrusted the contraband articles 9 Crl. Appeal No.1608/2004 to the Station writer. Further investigation was conducted by Sub Inspector of Police. PW5 identified MO1 to MO3. During cross examination, PW5 admitted that the independent witnesses were not residing near the place of occurrence but he prepared Ext.P1 mahazar. Therefore, it is clear that PW5 is a non-empowered officer for conducting the investigation under the Abkari Act. PW1 and PW2 attested ExtP1 mahazar and PW2 also supported the seizure of MO1 to MO3 from the possession of the appellant. The seized articles were kept in the police station. Nothing has been stated by PW5 whether he had taken sample and produced the seized articles before Court with a forwarding note. PW2 categorically stated that there was no disclosure to the investigating officer about the taking of sample. He was not present in the Police Station at the time of preparing 151A form for producing the sample before Court. The label was not affixed in the seized articles and in the sample at the place of occurrence. The independent witnessese also did not put their Crl. Appeal No.1608/2004 10 signatures in the label. These major legal infirmities in connection with the seizure of arrack from the possession of the appellant affect the credibility of the case. 7. PW3 took sample from the police station and prepared a forwarding note. The final report was prepared by subsequent Sub Inspector of Police. Even though PW3 deposed that he prepared a forwarding note, copy of the forwarding note was not produced in the trial Court. In Ext.P3 chemical examination certificate, it is stated that 30.58% volume of ethyl alcohol was contained in the sample. Analysing the evidence, it is found that procedural formalities were not properly complied by PW5 and he is non-empowered officer. There is no guarantee that proper sample was taken and it was forwarded to the chemical examiner's lab in a tamper proof condition. Therefore, the detection and investigation made by PW5 was against the Government notification issued vide SRO No.321/1996 dated 29.3.1996. Therefore, only the notified officer u/s.4 and 5 of Crl. Appeal No.1608/2004 11 the Abkari Act is competent to conduct investigation and file a final report. Therefore, the cognizance taken by the Magistrate on the basis of illegal report amounts to an illegality, since Asst. Sub Inspector of Police is not an Abkari Officer. Therefore, the detection of the offence, filing of final report and the cognizance taken by the Magistrate are illegal. Hence, the conviction of the trial Court on the basis of the illegal report is liable to be set aside. In the result, the conviction and sentence passed by the trial Court are set aside and the accused is acquitted and set at liberty. **P.D. RAJAN, JUDGE.** acd