Rohini v. State of Kerala

Crl.A.No.256/2015 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943_ _CRL.A NO. 256 OF 2015_ _AGAINST THE ORDER/JUDGMENT DATED 02.02.2015 IN SC 488/2014 OF ADDITIONAL SESSIONS JUDGE, PALAKKAD DIVISION AT_ _OTTAPPALAM_ ## _APPELLANT/ACCUSED:_ _ROHINI, AGED 50 YEARS, W/O.NARAYANAN, PUTHEN VEEDU, KAKKUPALAYAM, AGALI VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT. 678 581._ _BY ADV.SRI.T.K.SANDEEP_ ## _RESPONDENT/COMPLAINANT & STATE:_ _STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031._ _THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15.11.2021, THE COURT ON 26.11.2021 DELIVERED THE FOLLOWING:_ Crl.A.No.256/2015 2 ## **JUDGMENT** The appellant is the sole accused in S.C.No.488 of 2014 on the file of the Additional Sessions Court, Palakkad. The appellant was found guilty for the offences punishable under Sections 8(1) read with 8(2) of the Kerala Abkari Act and was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) with default sentence of simple imprisonment for three months. This appeal is filed challenging the aforesaid conviction and sentence. 2. The prosecution case is that on 24.06.2007 at 6.00 pm accused were found in possession of 28.500 litres of illicit arrack in 190 plastic covers having the capacity of 150 ml each, on the northern side of the court yard of the house of the first accused which is situated at Agali Village, Mannarkkad Taluk. In support of the prosecution case, PWs 1 to 10 were examined, Exhibits P1 to P12 series were marked and MOs 1 to 3 were identified. After closure of prosecution evidence, the appellant was questioned Crl.A.No.256/2015 3 under Section 313 Cr.P.C. and the incriminating materials brought out by the prosecution during the course of evidence were put to her. Appellant denied all the said allegations and pleaded innocence. After considering the materials available on record, the learned Sessions Judge passed the conviction and sentence as mentioned above. 3. Heard the learned counsel for the appellant and the learned Public Prosecutor. 4. The learned counsel for the appellant would contend that the conviction and sentence imposed upon the petitioner is not legally sustainable mainly on two grounds. Firstly, it was contended that the occurrence report was registered by PW6 who is a preventive officer and he was not competent to do so by virtue of Section 4 read with Section 40(3) of the Abkari Act. It was further contended that there was long delay in completing the investigation as the final report was submitted after four years of the incident. Crl.A.No.256/2015 4 5. Per contra, the learned Public Prosecutor would contend that PW6 had all the competence to register the complaint as he was duly authorized by the Excise Inspector Sivanandan to perform the duties of Excise Inspector in his absence and in order to prove the same, general diary kept in the Agali Excise Range Office was produced and marked through PW9 Assistant Excise Inspector. The aforesaid aspect was specifically taken into consideration by the learned Sessions Judge and found that PW6 was competent to register the occurrence report and no infirmity in the prosecution can be found in such circumstances. With regard to the contention of delay, the learned Public Prosecutor pointed out that unless it is established that the delay has caused prejudice to the appellant, it cannot be concluded that the same is fatal to the prosecution case. 6. The first point to be considered is whether PW6 was having competence to register the occurrence report pursuant to the incident. Section 4(d) of the Abkari Act stipulates for a Crl.A.No.256/2015 5 notification to be published by the Government empowering certain officers for carrying out the acts and duties mentioned in Section 40 to 53 of the Act. It is discernible that on the basis of the said notification, the Government has issued Government Order, SRO.239/1967 dated 10.08.1967 conferring different powers to be exercised under this Act on different categories of officers of Excise Department. It is also not in dispute that as per the aforesaid provision the Preventive Officer is not a person competent to register an occurrence report in respect of offence under Abkari Act. However, the contention of the learned Public Prosecutor is that, even though he was not a person notified for exercising the powers including the registration of occurrence report, he was duly authorized in this behalf by the notified officer in this regard to perform such duties in his absence. The said aspect was proved through PW9 who has produced and marked Exts.P11 and P12 series certified copies of general diary. 7. I find the contention of the learned public prosecutor not acceptable. The powers vested upon officers are conferred Crl.A.No.256/2015 6 upon them by way of notification as contemplated under Section 4 of Abkari Act. Section 40(3) provides that once a person is arrested for the commission of offence under Abkari Act, he has to be brought before the officer empowered under Section 5(a) of the Abkari Act. Abkari Inspector is defined as an officer appointed under Clause 4(d) of Abkari Act. A joint reading of the aforesaid provisions would indicate that, in order to perform the duties conferred upon the officers specifically referred to in the aforesaid provisions, it is mandatory that a notification has to be published empowering the said officers to carry out the said functions. The aforesaid provision does not contemplate for any delegation of powers and therefore the empowered officers cannot engage any other person to perform the duties as per the Act. In this case, only contention put forward by the learned Public Prosecutor is that PW6, was already in charge consequent to delegation of powers by the empowered officer and the registration of occurrence report was made by him in exercise of such delegation of powers. In the absence of any specific power Crl.A.No.256/2015 7 of delegation, I do not think that such authorization would make PW6, competent to register the occurrence report. The learned counsel for the appellant brought my attention to a judgment rendered by this Court in Crl.M.C.No.1339/2012 wherein this issue was considered and it was observed as follows: “Even otherwise, I find that the crime and occurrence report in this case was registered by a wrong person. Even as, the officer in charge of the excise inspector, a Preventive Officer cannot register crimes under the Kerala Abkari Act. As the officer in charge of the Inspector, a Preventive Officer can discharge so many functions at his office, but to discharge the functions under the Kerala Abkari Act there must be a specific authorisation in favour of Preventive Officers, under Section 4 of the Kerala Abkari Act. In this case, I find that the crime was registered by an incompetent person and the investigation was made by an Excise Inspector not authorised under the law.” 7. **Similarly, in Kunhanna Poojari v. State of Kerala [2019(4) KLT 292]** while considering the powers of the Abkari Officer to investigate the Abkari offence, it was observed that the empowered officer cannot delegate his powers conferred upon Crl.A.No.256/2015 8 him as per the statute. Such delegation can be effected only through the notification by the Government. Very same view is taken by this Court in **Suresh v. State of Kerala [2017 (2) KLT 765]** . In the light of the above judicial precedents, I am of the view that the registration of the case was made by an incompetent person and therefore all further proceedings pursuant thereto are vitiated. 8. Another contention put forward by the learned counsel for the appellant is with regard to the delay caused in completing the investigation and submitting the final report. However, I am not inclined to accept the aforesaid contention. It is a well settled position that unless there is a specific case for the accused that the delay has caused serious prejudice to him, the same cannot be treated as fatal to the prosecution. The aforesaid view was taken by this Court in **Santhosh T.A. and Another v. State of Kerala [2017 (5) KHC 107]** and **Varghese v. State of Kerala [2020 (6) KHC 589]** . In such circumstances, the aforesaid contention is not legally sustainable. Crl.A.No.256/2015 9 9. However, as I have already found that the case was registered by PW6 who lacked competence to do the same as per the statute, the entire proceedings are vitiated. Therefore, the finding entered into by me in respect of the delay in filing the charge-sheet is only having the academic relevance. In the light of the finding on the first issue i.e., regarding the lack of competence of PW6 to register the case, the appellant is entitled to succeed. The entire proceedings pursuant to the registration of crime are vitiated due to the same. In such circumstances, this appeal is allowed. The conviction and sentence imposed by the Sessions Court as per judgment dated 02.02.2014 in SC 488/2014 is hereby set aside and the appellant is set at liberty forthwith, unless she is wanted in any other case. The bail bonds executed by him shall stand revoked. Sd/- ## **ZIYAD RAHMAN A.A.** ## **JUDGE** DG/SCS