Rajan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 26[TH] DAY OF AUGUST 2022 / 4TH BHADRA, 1944 CRL.A NO. 789 OF 2008 ``` ``` AGAINST THE JUDGMENT IN SC 738/2006 OF ADDITIONAL DISTRICT & SESSIONS COURT FAST TRACK (ADHOC)-II, KOZHIKODE ``` ## **`APPELLANT/ACCUSED:`** ``` RAJAN, S/O.RAMAN, ACHARUKUNNUMMAL HOUSE NANMANDAMEDU,NANMANDA AMSOM,DESOM, KOZHIKODE TALUK. BY ADVS.SRI.K.B.ARUNKUMAR SRI.HARIDAS ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADV.RAJEEV JYOTHISH GEORGE, PUBLIC PROSECUTOR SRI.RAJEEV JYOTISH GEORGE, PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **CRA No.789/2008** **2** **P.V.KUNHIKRISHNAN, J. -------------------------------Criminal Appeal No.789 of 2008 ---------------------------------------------Dated this the 26[th] day of August, 2022** ## **JUDGMENT** Appellant is the accused in S.C.No.738/2006 on the file of the Additional District & Sessions Judge, Fast Track (Adhoc-II), Kozhikode. The above case is charge sheeted by the Excise Inspector, Paravur Range against the appellant alleging offences punishable under Section 8 of the Abkari Act. 2. The prosecution case is that on 22.12.2003, the appellant was found carrying 1½ litres of arrack in a plastic bottle in his possession. Hence it is alleged that the appellant committed the offence. 3. To substantiate the case, the prosecution examined PW1 to PW5. Exts.P1 to P6 are marked as exhibits on the side of the prosecution. One witness was examined on the side of defence as DW1. 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 of the Abkari Act. He was sentenced to undergo rigorous **CRA No.789/2008** **3** imprisonment for one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he was sentenced to undergo rigorous imprisonment for a further period of six months. Aggrieved by the conviction and sentence, this Criminal appeal is filed. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. The counsel for the appellant submitted that the investigation in this case is conducted by an Assistant Excise Inspector and he submitted the final report. The counsel submitted that he is not an authorised officer as per the Abkari Act and for that simple reason, the entire prosecution is vitiated. 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. It is also submitted that there is oral and documentary evidence to prove the prosecution case. 7. The point to be decided in this case is whether the appellant committed the offence under Section 8 of the Abkari Act. **CRA No.789/2008** **4** 8. Admittedly PW5 is the Assistant Excise Inspector. The detection in this case was on 22.12.2003. As on that date, the Assistant Excise Inspector is not an authorised officer as per the Abkari Act to conduct search, seizure and investigation. For that simple reason, the appellant is entitled acquittal. In **Bhaskaran v. State of Kerala [2018 (4) KLT** **894]** , **Subrahmaniyan v. State of Kerala [2010 (2) KLT 470]** and **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 **CRA No.789/2008** **5** 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 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 **CRA No.789/2008** **6** 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.” 9. 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, 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 **CRA No.789/2008** **7** 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 **CRA No.789/2008** **8** 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 of the accused and properties before **CRA No.789/2008** **9** Court, done by the Assistant Excise Inspector, would be well within his powers.” 10. In the light of the above discussion, the appellant is entitled the benefit of doubt. Therefore, the Criminal appeal is allowed in the following manner: - i. The conviction and sentence imposed on the appellant as per judgment dated 04.03.2008 in S.C.No.738/2006 on the file of the Additional District & Sessions Judge, Fast Track (AdhocII), Kozhikode, is set aside and the appellant is set at liberty. ii. The bail bond, if any, executed by the appellant is cancelled. JV sd/- **P.V.KUNHIKRISHNAN JUDGE**