Raveendran v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD MONDAY, THE 7TH DAY OF APRIL 2014/17TH CHAITHRA, 1936 CRL.A.No. 399 of 2004 (A) -------------------------- SC 367/2000 of ADDITIONAL SESSIONS COURT (ADHOC-I), MANJERI APPELLANT(S)/ACCUSED:: ------------------------------------------ RAVEENDRAN, S/O.SIVANANDAN, KALACHIRA PUTHENVEETTIL HOUSE, EDAKKARA AMSOM NILAMBOOR. BY ADV. SRI.WILSON URMESE RESPONDENT(S)/COMPLAINANT:: ------------------------------------------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE EXCISE INSPECTOR, NILAMBUR RANGE. BY PUBLIC PROSECUTOR SHRI K.K.RAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.Appeal No.399 of 2004** **-------------------------------------Dated this the 7[th] day of April, 2014.** ## **JUDGMENT** Appeal filed under Section 374(2) of the Code of Criminal Procedure (in short, “Cr.P.C.”). 2. Accused in S.C.No.367 of 2000 on the file of the Additional Sessions Court (Adhoc-I), Manjeri, who is aggrieved by the conviction under Section 55(a) of the Abkari Act (in short, “Act”), has come up in appeal. 3. Short facts are as follows:- On 30.12.1998 the appellant/accused was found in possession of five litres of illicit arrack in a can at about 5.30 p.m. at Edakkara. The Investigating Officer apprehended the accused for violating the provisions of the Act and after completing all the formalities, he had been produced before the court. Subsequently on the closure of investigation, a charge was laid and it was committed to the Court of Sessions. It was made over to the trial Judge and after framing charge, the accused was tried. Eight witnesses testified and eight documents were marked on the side of the prosecution. DW1 was examined on the defence side. MO1 is the can allegedly possessed by the accused at the time of detection. 2 Crl.Appeal No.399 of 2004 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. Learned counsel for the appellant submitted that conviction of the appellant is not sustainable in law and it cannot be justified on a proper appreciation of the evidence also. Per contra, learned Public Prosecutor submitted that there is no legal flaw either in detection or in investigation. The prosecution was able to establish the guilt of the accused beyond reasonable doubt. Learned Prosecutor strongly supported the judgment of the trial court. 6. PW1 worked as Preventive Officer, Excise Office, Nilambur. On 30.12.1998 he along with his party were on patrol duty. While they were proceeding on foot, they found the accused in a suspicious circumstance, coming opposite to them, holding a can. On feeling suspicion, the can possessed by the accused was examined. It contained about five litres of liquor and found to be illicit arrack. At that time, the independent witnesses also came to the place of detection. The fact of possession of illicit liquor by the accused was intimated to the witnesses also. Thereafter, the accused was arrested. Sample was drawn in a 375 ml. bottle from the contraband article. The bottle and MO1 can were sealed and labelled. He prepared Ext.P1 mahazar. Ext.P2 memo was also prepared from the place of detection and the accused and witnesses 3 Crl.Appeal No.399 of 2004 signed on both. 7. PW1 was subjected to cross-examination. In spite of definite challenge made in cross-examination regarding the veracity of the prosecution case, PW1 remained credible in spite of lengthy and searching cross-examination. Detection of offence and formalities have been specifically spoken to by PW1. 8. PW2 was an Excise Guard, who was in the party of PW1 at the material time. He also deposed that the accused was possessing five litres of illicit arrack on 30.12.1998 at about 5.30 p.m.. PW2 supported the evidence of PW1 regarding the drawing of sample and preparation of material papers from the place of detection. His testimony also remains believable after cross-examination. 9. PW3 was an independent witness, who turned hostile and refused to support the prosecution. Though he admitted signatures on Exts.P1 and P2, he would depose that those signatures were put by him from a toddy depot and not from the place of occurrence. PWs 4 and 8 , Excise Inspectors, conducted a portion of the investigation. PW5, the Assistant Excise Inspector was holding the charge of Excise Inspector at the material time. On 31.12.1998 he received the accused and contraband articles and registered Ext.P4 occurrence report. He submitted the forwarding note and property list on the same day, which are marked as 4 Crl.Appeal No.399 of 2004 Exts.P5 and P6. PW6 completed the investigation and filed the charge sheet. He deposed that Ext.P7 chemical analysis report shows that the contraband tested positive for ethyl alcohol. 10. PW7, another independent witness also turned hostile to the prosecution case. 11. DW1 cited by the defence deposed that there was a toddy depot at Chungathara. He only stated that there were lot of workers in the toddy depot. It is not discernible from the evidence of DW1 as to why he was examined as he did not adduce any evidence touching the issue in our hand. 12. Material documents like Ext.P1 mahazar, Ext.P2 arrest memo and Ext.P4 crime and occurrence report, etc. were prepared contemporaneous to the detection of offence. Property list (Ext.P5) was produced before the court on the next day of occurrence without any delay. The seizure of the contraband was reported forthwith. Forwarding note was also submitted on 31.12.1998. Oral evidence adduced and the records produced before the trial court would indicate that the prosecution has proved the case beyond reasonable doubt that the accused was found in possession of illicit arrack as alleged by them. 13. Learned counsel for the appellant submitted that since a part of the investigation was done by the Assistant Excise Inspector, the whole 5 Crl.Appeal No.399 of 2004 prosecution case is vitiated. I am unable to accept this contention for the following reasons:- (i) The detection in this case was conducted by the Preventive Officer, who is an authorised officer going by notification SRO No.234 of 1967 dated 10.08.1967. The above SRO clearly indicates the officers and their duties and powers. Entry No.12 is pertaining to Preventive Officers of Excise Department. It reads as follows:- _“Preventive Officers of the Within their respective jurisdiction Excise Department on duty within the Kerala State - to be Abkari Officers under their respective denominations for the purposes of Sections 31, 32, 34, 35, 38, 39, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers in the sections aforesaid.”_ There is no dispute regarding the fact that PW1 was exercising jurisdiction within his area of operation. Therefore, there is nothing wrong in the detection of offence by PW1. (ii) It is true that the Assistant Excise Inspector (PW5) prepared Ext.P4 occurrence report, Ext.P5 property list and Ext.P6 6 Crl.Appeal No.399 of 2004 forwarding note. It is come out in evidence that he was holding the charge of Excise Inspector at the material time. Excise Inspector is an Officer competent to detect the offence as per SRO No.234 of 1967. Entry No.10 in the notification is relating to the Excise Inspectors, it reads as follows: _“Circle Inspectors of Excise, Within their respective jurisdiction Excise Inspectors attached to the Circles and Excise Inspectors in charge of Ranges - to be Abkari_ _Officers under their respective denominations for the purposes of Sections 31, 32, 34, 35, 38, 39, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers in the Sections aforesaid.”_ Apart from that, the learned Prosecutor submitted that the post of Assistant Excise Inspector was inserted to the Kerala Excise and Prohibition Subordinate Service (Special Rules) as per G.O.(P) No.123/85/TD dated 10.10.1985. It is true that SRO No.321 of 1996 does not include this category of officers as Abkari Officers competent to exercise the powers under the Act. The Assistant Excise Inspectors were clothed with the powers only as per SRO No.361 of 2009 dated 08.05.2009. The contention raised by the appellant that the prosecution is vitiated based 7 Crl.Appeal No.399 of 2004 on the decision in **Subrahmaniyan v. State of Kerala (2010 (2) KLT 470)** is not sustainable. That was a case wherein the entire formalities were done by an Assistant Excise Inspector before they were conferred with powers of an Abkari Officer as per Section 4 of the Act. Here in this case, the Preventive Officers are competent to conduct detection and investigation going by the SRO mentioned above. 14. Another decision relied on by the learned counsel for the appellant is **Sasidharan v. State of Kerala (2012 (2) KLT 392)** . Therein GO(Ms) No.142/1988/TD dated 12.10.1988 was not referred to. As per the said notification, the Government have decided that the duties and responsibilities of the Assistant Excise Inspector in the Excise Ranges will be the same as those of Excise Inspectors, but they will be subordinate to the Excise Inspectors and shall perform their duties and exercise their functions under the direction and control of the Excise Inspector. Considering the factual situations and legal issues, I am of the view that there is no legal infirmity and the conviction of the appellant by the court below is legally correct. There is no vitiating circumstance, which will go to the benefit of the accused. 15. Learned counsel for the appellant submitted that the punishment imposed on the appellant is harsh. Reckoning the facts and circumstances, the appeal is disposed with the following directions. 8 Crl.Appeal No.399 of 2004 In the result, the appeal is partly allowed. Conviction of the appellant under Section 55(a) of the Abkari Act is confirmed. Sentence imposed by the trial court is reduced to six months rigorous imprisonment and to pay a fine of `1,00,000/- (Rupees One lakh only). In default of payment of fine, he shall undergo simple imprisonment for a period of six months. Appellant is entitled to get the benefit of set off under Section 428 Cr.P.C. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**