Rajesh @ Rajaseethnam v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 20[TH] DAY OF SEPTEMBER 2023 / 29TH BHADRA, 1945 CRL.REV.PET NO. 1470 OF 2013** **AGAINST THE ORDER/JUDGMENT CRA 154/2012 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD SC 408/2010 OF SUB COURT / COMMERCIAL COURT, KASARAGOD** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** RAJESH @ RAJASETHNAM, AGED 28 YEARS S/O. K.P. KUMARA, RESIDING AT BEDIRADUKA HARIJAN COLONY, KUDLU VILLAGE, KASARAGOD DISTRICT. BY ADVS. SRI.T.SETHUMADHAVAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON ## **RESPONDENT/RESPONDENT/COMPLAINANT:** STATE OF KERALA,REPRESENTED BY THE DIRECTOR OF PUBLICE PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. ## **OTHER PRESENT:** PP – SRI. RENJIT GEORGE ## **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON** **20.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL. R.P. No.1470 of 2013 :2: ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **CRL. R.P. No.1470 of 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of September, 2023 ## **ORDER** The Revision Petitioner herein is the accused in S.C. No. 408/2010 on the file of the Assistant Sessions Judge, Kasaragod alleging the commission of offence punishable under Section 55(a) of the Abkari Act. The Excise Range, Kasaragod registered the Crime against the accused as Cr. No.30/2008. 2. The prosecution case is that on 18.6.2008 at 4.20 P.M., the revision petitioner was found transporting 30 litres of spirit in a can through Chowki-Kambar Road in Kudlu Village in contravention of the provisions of the Abkari Act. 3. On the side of the prosecution, PWs 1 to 5 were examined and Exts.P1 to P11 were marked. The trial court convicted the accused for the offence under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for a period of 4 years and to pay a fine of Rs.1,00,000/- and in default in payment of the fine, to undergo simple imprisonment for a period of 6 months. Though the conviction and sentence were challenged in Crl. CRL. R.P. No.1470 of 2013 :3: Appeal No. 154/2012 before the Sessions Court, Kasaragod, the same was dismissed confirming the conviction and sentence passed by the court below. 4. The learned counsel appearing for the revision petitioner would contend that the conviction and sentence passed by both the courts are illegal, improper and irregular and that the prosecution was not successful in proving the case against the petitioner/accused beyond reasonable doubt. On the contrary, the learned Public Prosecutor would submit that the prosecution was able to prove the guilt of the accused by adducing sufficient and cogent evidence and therefore, prayed to maintain the conviction and sentence imposed by the courts below. 5. The learned counsel for the revision petitioner mainly raised two contentions. PW1, the Detecting Officer was a Preventive Officer, who was not competent or authorised to be a detecting officer as on the date of occurrence i.e., 18.06.2008. It is further contended that PW5, the Assistant Excise Inspector had no jurisdiction to conduct an investigation on the date of the occurence. It is further contended that the Preventive Officer as well as the Assistant Excise Inspector obtained jurisdiction to do CRL. R.P. No.1470 of 2013 :4: so, only as per S.R.O.No.261/2009, dated 08.05.2009 and the occurrence being on 18.06.2008, they are incompetent. The second contention raised by the learned counsel for the revision petitioner is that there is an inordinate delay in conducting the investigation and in filing the charge sheet. Though the occurrence was on 18.06.2008, the investigation was started only on 01.08.2009, almost after a year and the final report was filed only on 15.10.2009. The learned counsel for the revision petitioner submits that there is an unexplained delay, which is fatal to the case of the prosecution. The learned counsel for the revision petitioner relies on the judgments of this Court in **Chandran @ Chandrashekaharan v. State (2016 (5) KHC 650)** and _**Surendran and Another v. State of Kerala 2013(3) KHC 780**_ in support of his contentions. 6. As regards the first contention, the learned Public Prosecutor contended that PW1, the Detecting Officer, was a Preventive Officer and going by S.R.O. No.234/1967, the Preventive Officer of the Excise Department on duty within the Kerala State to be Abkari Officers in relation to the functions :5: CRL. R.P. No.1470 of 2013 assigned to them by virtue of their respective post or designation, for the purpose of Section 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. As regards the second contention that the Assistant Excise Inspector is incompetent to conduct an investigation, the learned Public Prosecutor would contend that the investigation started only on 01.08.2009 and by that time S.R.O. No.361/2009 dated 08.05.2009 came into force whereby the Assistant Excise Inspector also was notified to be competent to conduct the investigation. In view of the same, I am not inclined to accept the contention of the revision petitioner that the Officers were incompetent to conduct the search and seizure and the investigation at the relevant point of time. 7. As regards the delay in conducting the investigation, which is unexplained, I find considerable force in the argument of the revision petitioner. Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. Though the occurrence was on 18.06.2008, the investigation was started only on :6: CRL. R.P. No.1470 of 2013 ## 01.08.2009, almost after a year and the final report was filed only on 15.10.2009. In _**Chandran**_ 's case (Supra) paragraph 12 of the judgment reads as follows: “12. _There is also delay in this case in filing the final report before the Court. When there was delay of eight months in conducting the investigation, the Court in Krishnan H v. State, 2015(1) KHC 822: 2015(1) KLD 421: 2015(1) KLJ 793: 2015(2) KLT SN 11 held that the long delay in conducting the investigation, in the absence of sufficient explanation, was fatal to the prosecution. In this case, the investigation was practically over on the date of seizure of the contraband itself. The detection was effected on 07/01/2006. The statement of witnesses was recorded on 08/01/2006 and 09/01/2006. Even then, the final report was filed before the Court only on 07/11/2006. No explanation has been given by the prosecution as to why there was delay in completing the investigation and filing the final report. Since there was unexplained delay in this case in completing the investigation and filing the final report, the same is also no doubt fatal to the prosecution as held in Krishnan (supra).”_ ## In _**Surendran**_ 's case (Supra), paragraph 12 reads as follows: _“12. Section 50 of the Abkari Act mandates that every investigation of the offence under this Act shall be_ CRL. R.P. No.1470 of 2013 :7: _completed without necessary delay. In this case the occurrence was on 06/06/1998. Chemical examiner submitted report on 03/12/1998. The final report should have been submitted before the Court immediately thereafter. It is seen that the final report was submitted only on 05/10/2000 ie., after a period of one year and nine months. The investigation was completed on receipt of the chemical examiner's report. There is no reason stated nor any explanation offered for not submitting the final report within a reasonable time after receipt of chemical examination report. PW 6 took charge as the Sub Inspector of Police on 01/08/2000, Only thereafter, the final report was submitted on 05/10/2000. It is not known for what purpose the records were kept in the Police Station without submitting final report in time. In the facts and circumstances of the case, the conviction entered and sentence passed by the Court below in the proved circumstances cannot be sustained_ .” Admittedly the occurrence was on 18.06.2008 and the investigation was started only on 01.08.2009, after a delay of almost 14 months and the final report was filed only on 15.10.2009. There is no explanation offered for the delay. In the said circumstance, I am of the opinion that the same is fatal to the prosecution. CRL. R.P. No.1470 of 2013 :8: 8. The above vital aspect was not considered by the courts below while appreciating the evidence and consequently convicting and sentencing the revision petitioner/accused. Therefore, the conviction and sentence imposed by the courts below cannot be sustained. In the result, the revision petition is allowed, setting aside the conviction and sentence passed by the courts below under Section 55(a) of the Abkari Act and the revision petitioner/accused is acquitted of the charges levelled against him. The bail bond shall stand cancelled and he is set at liberty. Needless to say, if the revision petitioner/accused has deposited any amount before the trial court pursuant to an order passed by this court or the appellate court, the same shall be refunded to the revision petitioner in accordance with the law. Sd/- **VIJU ABRAHAM JUDGE** sm/