Rajan Vallithundil Veedu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 02ND DAY OF JULY 2020 / 11TH ASHADHA, 1942** ## **CRL.A.No.1610 OF 2005** **AGAINST THE JUDGMENT IN SC 534/2003 DATED 09-08-2005 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK COURT-I, PATHANAMTHITTA** ## **APPELLANT/ACCUSED:** **RAJAN VALLITHUNDIL VEEDU, ANGADICAL THEKKEKARA, ANGADICAL VILLAGE, ADOOR TALUK.** **BY ADV. SRI.S.HARIKRISHNAN** ## **RESPONDENT/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 THE EXCISE INSPECTOR ADOOR.** ## **SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.A.No.1610/2005 ## **JUDGMENT** ## **Dated this the 2nd day of July 2020** The above appeal is filed by the accused in Sessions Case No.534 of 2003 on the file of the Additional District and Sessions Judge (Adhoc), Fast Track Court-I, Pathanamthitta. The Excise Inspector, Adoor Excise Range charge sheeted the accused alleging offence punishable under Section 8(1) & (2) and 55(a) of the Abkari Act. 2. The prosecution case is that on 20.6.1999, at 7 A.M., the accused was found in possession of 3 litres of arrack in a cannas of 5 ltr. capacity in the bed room of his house bearing No.VIII/619 of Kodumon Grama Panchayat. The Assistant Excise Inspector and the party of Adoor Excise Range searched the house. Hence the accused committed the offence. The trial court framed a charge under Section 8(1) and (2) of the Abkari Act. 3. To substantiate the case, PW1 to PW6 were examined. Exts.P1 to P11 are the documents 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 under Section 3 Crl.A.No.1610/2005 8(1) and (2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- under Section 8(1) and (2) of the Abkari Act. In default of payment of fine, the accused was directed to undergo simple imprisonment for two years. Aggrieved by the conviction and sentence, this Crl.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 entire trial, in this case, is vitiated because an Assistant Excise Inspector conducted the search. 7. The learned Public Prosecutor conceded that the search and seizure are conducted by an Assistant Excise Inspector. 8. The point for consideration, in this case, is whether the accused committed the offence under Section 8(1) & (2) of the Abkari Act. 9. The Assistant Excise Inspector is not an authorised person to conduct search and seizure as per the Abkari Act. In _**Bhaskaran v. State of Kerala [2018 (4) KLT 894]**_ and _**Subrahmaniyan v. State of Kerala [2010 (2) KLT 470]**_ and 4 Crl.A.No.1610/2005 ## _**Sasidharan v. State of Kerala [2012 (2) KLT 392]** ,_ this 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_ 5 Crl.A.No.1610/2005 _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.”_ 11. Similarly in _Sasidharan_ ’s case (supra) also, the same point is considered. The relevant portion is extracted hereunder : 6 Crl.A.No.1610/2005 _“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)._ 7 Crl.A.No.1610/2005 _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 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_ 8 Crl.A.No.1610/2005 _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. Admittedly in this case the search and seizure was on 20.6.1999. Hence in the light of the above authoritative judgments of this Court, the trial in this case is vitiated. Hence, this Crl.Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 9.8.2005 by the Additional District and Sessions Judge (Adhoc), Fast Track Court-I, Pathanamthitta, is set aside. The appellant is set at liberty. Bail bond, if any, executed by him is cancelled. Sd/- ## **P.V.KUNHIKRISHNAN** ## **JUDGE** **csl**