RAVEENRAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 30TH DAY OF JUNE 2020 / 9TH ASHADHA, 1942** ## **CRL.A.No.897 OF 2005** **AGAINST THE JUDGMENT IN SC NO.31/2003 DATED 05-10-2004 OF THE ADDITIONAL DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC)-II, KOZHIKODE** ## **APPELLANT/ACCUSED:** **RAVEENRAN, S/O. KUNHIYEKKAN, THURUTHUMALAYIL, AVIDANALLUR AMSOM, POONATH DESOM, KOZHIKODE.** **BY ADVS. SRI.PROMY KAPRAKAT SRI.K.N.ABHILASH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.897 OF 2005 2 ## **JUDGMENT** The above appeal is filed by the accused in S.C. No.31 of 2003 on the file of the Additional District & Sessions Judge, Fast Track (Adhoc-II), Kozhikode. 2. The above case is charge sheeted under Sections 8(1)&(2) of the Abkari Act. 3. The prosecution case is that, on 8.10.2001 at about 6 p.m., when the Preventive Officer and party attached to Balussery Excise Range were patrolling, the accused was found carrying 5 litres of illicit arrack in a 5 litre plastic can. Accused was arrested. The accused was produced before the Assistant Excise Inspector. The Assistant Excise Inspector prepared Ext.P4 occurrence report. The accused was produced before the Court with Ext.P5 remand report. Thondy articles were also produced before the court as per Ext.P6 property list. The Assistant Excise Inspector prepared forwarding note for sending the sample to the Chemical Examination. Thereafter, PW5 Excise Inspector filed the final report. 4. The trial court framed charge under Sections CRL.APPEAL NO.897 OF 2005 3 8(1)&(2) of the Abkari Act against the accused. 5. To substantiate the case PW1 to PW5 were examined on the side of the prosecution. Exhibits P1 to P8 are the documents marked on the side of the prosecution. MO1 is the material object. 5. After going through the evidence and documents, the trial court found that the accused committed the offence under section 8(1) & (2) of the Abkari Act. He is sentenced to undergo Rigorous imprisonment for two years and to pay a fine of Rs. 1,00,000/-. In default of payment of fine, he is directed to undergo Simple Imprisonment for a further period of six months. Aggrieved by the conviction and sentence, this Crl.Appeal is filed. 6. Heard the learned counsel for the appellant and the learned Public Prosecutor. 7. The learned counsel for the appellant submitted that the Assistant Excise Inspector conducted the main part of investigation and he is not an authorized person as per the Abkari Act to conduct investigation, and hence, the entire trial is vitiated. Even though, the learned Public Prosecutor CRL.APPEAL NO.897 OF 2005 4 conceded this aspect; the Public Prosecutor submitted that, in the light of the oral and documentary evidence, the trial court is perfectly justified in convicting the accused. 8. The point for consideration in this appeal is whether the accused committed the offence under Sections 8(1) & (2) of the Abkari Act. 9. Admittedly, the Assistant Excise Inspector conducted the main part of the investigation in this case. The search, seizure, arrest and investigation by the Assistant Excise Inspector will vitiate the trial because the Assistant Excise Inspector is not an authorized person for the same till 8.5.2009. Admittedly in this case the seizure was on 6.6.1999. In **Bhaskaran v. State of Kerala** [2018 (4) KLT 894] and in **Subrahmaniyan v. State of Kerala** [2010 (2) KLT 470] and in **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_ CRL.APPEAL NO.897 OF 2005 5 _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 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 Crl.A.No.623/2005 6 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_ CRL.APPEAL NO.897 OF 2005 6 _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.”_ 10. 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 Crl.A.No.623/2005 7 notification and orders conferring powers, imposing duties and making appointments under the act may_ CRL.APPEAL NO.897 OF 2005 7 _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)._ _18. Smt.Jasmine, the learned Public_ _Prosecutor submits that the contention that even_ CRL.APPEAL NO.897 OF 2005 8 _thereafter no notification was issued authorising Crl.A.No.623/2005 8 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 provisions. Therefore, only on this_ CRL.APPEAL NO.897 OF 2005 9 _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 Crl.A.No.623/2005 9 and production of the accused and properties before Court, done by the Assistant Excise Inspector, would be well within his powers.”_ **==> picture [427 x 12] intentionally omitted <==** investigation was conducted by the Assistant Excise Inspector in 2001. In the light of the above dictum laid down by this Court, I think, the prosecution is unsustainable. Hence, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 5.10.2004 in S.C. No.31 of 2003 by the Additional District & Sessions Judge, Fast Track (Adhoc-II), Kozhikode, are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant, is cancelled. ## **pkk** ## **Sd/P.V.KUNHIKRISHNAN JUDGE**