Salavudeen s/o Ismail Harsooon (deceased) and Amina vs State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY, THE 11TH DAY OF DECEMBER 2019 / 20TH AGRAHAYANA, 1941** ## **CRL.A.No.935 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 271/2006 DATED 20-05-2008 OF ADDITIONAL DISTRICT COURT (ADHOC), PALAKKAD** ## **APPELLANTS:** **1 SALAVUDEEN S/O ISMAIL HARSOON(DIED), SALAR HOUSE, PILATHURMEDU, PUDUNAGARAM, CHITTUR, PALAKKAD DISTRICT. 2 ADDL. 2ND APPELLANT, AMINA AGED 50 YEARS W/O LATE. SALAVUDEEN, SALAR HOUSE,PILATHURMEDU, PUDUNAGARAM, CHITTUR, PALAKKAD DISTRICT.** **ADDITIONAL 2ND APPELLANT IMPLEADED AS PER ORDER DATED 9.12.2019 IN CRL.MA 1/2019 IN CRL.A 935/2008** **BY ADVS. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, KOLLANGODE, PALAKKAD DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **ADV.SRI.M.S. BREEZ, SR. PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.935 OF 2008** **2** ## **JUDGMENT** The sole accused in S.C.No.271/2006 before the Additional Sessions Judge, Adhoc Court-I, Palakkad filed this appeal challenging the judgment of conviction and sentence on him for offence punishable under Section 55(i) of the Abkari Act (hereinafter referred to as ‘the Act’). He was sentenced to undergo R.I. for a period of 5 years and to pay a fine of Rs.2,00,000/- (Rupees Two Lakhs only) with default sentence for another period of R.I. for 2 years. 2. During the pendency of appeal, the appellant passed away and his wife sought leave of this court to prosecute the appeal and accordingly she was impleaded as additional 2[nd] appellant. 3. The appellant was charge sheeted by PW10, C.I. of Excise, Alathur for offence punishable under Section 55(a) of the Act on the allegation that on 17.07.2000 at 2 pm he possessed 5250 litres of spirit in 150 white plastic Cans of 35 litres each in an underground secret chamber within the compound of Salar Rice Mill Complex in Pilathurmedu, Pudunagaram in Chittur village. **CRL.A.No.935 OF 2008** **3** 4. The prosecution case is that on getting secret information that the appellant was keeping spirit within the compound of Salar Rice Mill Complex, Excise Special Squad, Palakkad consisting of PW1 C.I. of Excise and PW3 Excise Inspector and others came to the place of occurrence and found appellant coming out of a manhole of 3 feet width in suspicious manner. When he was intercepted and the party went inside the secret chamber through the tunnel, the spirit kept in 150 white plastic Cans was found. One of the Cans was opened and 500 ml of spirit was taken as sample in a bottle of 750 ml after the detecting officer being satisfied through smell and taste test that the liquor was spirit. The sample bottle was sealed using his personal seal and it was labelled also. Similarly, all the 35 white Cans were also sealed and labelled in accordance with law. The appellant was arrested at the spot itself. Evidencing these formalities, Ext.P1 seizure mahazar was prepared by PW1. Simultaneously, Ext.P2 search list was also prepared. The appellant and the material objects were brought to Excise Range Office, Kollengode. PW4 Excise Range Inspector prepared Ext.P4 occurrence report and he produced the appellant, material objects and contemporaneous records before the court the very **CRL.A.No.935 OF 2008** **4** next day. The investigation of the case was taken over and conducted by PWs 8 to 10, the successor Circle Inspectors of Excise, Alathur. Ext.P5 site plan was caused to be prepared through PW2 Village Officer, Pudunagaram. The ownership of the Rice Mill building was sought to be ascertained through PW7 Panchayat Secretary of Pudunagaram Panchayat who prepared Ext.P8 ownership certificate. After completing investigation, PW10, C.I. of Excise, Alathur laid the final report before the committal court. 5. After the case being committed to Court of Sessions, Palakkad, it was made over to Additional Sessions Judge, Adhoc Court-I, Palakkad where charge was framed against the appellant for offence punishable under Section 55(i) of the Act which the appellant denied when it was read over and explained to him. 6. The prosecution then examined PWs 1 to 10 and marked Exts.P1 to P16 and M.Os 1 and 2 series. The appellant was questioned under Section 313 of Cr.P.C. with respect to the incriminating evidence and he denied that he was in possession of the contraband liquor and arrested from the place of occurrence. On his side, he produced Ext.D1 chemical analysis **CRL.A.No.935 OF 2008** **5** report to prove that the sample alleged to have been taken and sent for chemical analysis to laboratory was only petroleum ether and therefore itself entire case was a fabricated one. 7. The court below after hearing both sides and examining the entire evidence on record found that the contraband spirit was seized from the possession of the appellant and he committed offence punishable under Section 55(i) of the Act. The defence contention that he was not arrested from the place of occurrence nor the liquor was taken from his possession was disbelieved and was rejected. 8. It is contended on behalf of the appellant that the officers who investigated and laid final report before the committal court were not competent to act as Abkari officers in strict letter of law. PWs 8, 9 and 10 were Circle Inspectors of Excise hailing from a different area of Abkari jurisdiction and therefore they were not competent to investigate the Abkari crime that occurred in Kollengode Range. In this connection, a decision reported in **Hamsa Koya v. State of Kerala (2015 (2) KHC 206)** was cited. The alleged crime was committed within the local limits of Kollengode Excise Range. PWs 8, 9 and 10 were Circle Inspectors of Alathur Excise Range. Going by **CRL.A.No.935 OF 2008** **6** G.O.P. No.420/2009 dated 08.05.2009 issued by Government, power of Excise Circle Inspectors to investigate and prosecute is confined only to their respective jurisdictional areas. This being the position of law, it is argued, PWs 8, 9 and 10 were not competent to have undertaken investigation and further PW10 was also not competent in having laid the final report in respect of the crime which occurred in an area beyond the territorial jurisdiction. It is also contended that the sample collected by the detecting officer at the spot having been proved to be petroleum ether on chemical analysis, it was improper for the committal court to have permitted the prosecution to collect second sample from the plastic Cans kept in the Excise office. The substance of his contention is that there was nothing before the court to ensure that those Cans remained in the safe custody and untampered condition. In short, the substance of the argument is that Ext.P16 chemical report containing the test result cannot be used to incriminate the appellant at all. 9. I heard the learned Public Prosecutor also in detail. According to him, the court below was right in having found the appellant guilty. 10. It is true that the sample taken from the spot on the **CRL.A.No.935 OF 2008** **7** date of detection turned out to be petrol ether when it was put to test by the chemical laboratory as is borne out from Ext.D1 chemical analysis report. Later, PW9 applied to the court for permission to take second sample from the plastic Cans kept in the Excise Office under the orders of the court. Permission was granted by the court and accordingly second sample taken was sent to the chemical laboratory. Ext.P16 chemical report reveals that the liquor tested was spirit and it contained 95.12 percent volume of ethyl alcohol. It seems that there is nothing on record to show that when the second sample was taken it was done in the presence of the appellant or his lawyer. Even otherwise also, it is doubtful as to whether M.O. 1 series plastic Cans remained in the safe custody of the Excise officials to whom the Cans were temporarily handed over under the orders of the court since no convincing evidence was adduced to show that the Cans were in untampered condition or they remained in safe custody bearing the personal seal of the detecting officer. The finding of the court below in this respect in paragraph 30 of the impugned judgment does not appear to be sound and based on evidence. 11. In Ext.P1 seizure mahazar, the detecting officer **CRL.A.No.935 OF 2008** **8** stated that the sample he had taken from one of the Cans was after his conducting smell and taste test and the liquor appeared to him to be spirit. Though no samples were taken from other Cans he was convinced that similar liquor was kept in all the remaining plastic Cans also. This is what seizure mahazar and his evidence show. The detecting officer should have had the wisdom of collecting sample from each of the Cans to make sure that those Cans also contained spirit. 12. In any view of the matter, the act of collecting the second sample in the absence of the accused must be reckoned as having caused serious prejudice to accused. Non examination thondy section clerk seems to be fatal. Since sample was taken under the orders of the court, the formalities observed in the course of taking sample must have been proved through him instead of the court below having endeavoured to act on the presumption of official acts. In any view of the matter, the appellant deserves to get at least the benefit of reasonable doubt. 13. Even assuming that the sample was properly collected in accordance with law and M.O.1 series alleged to have been seized from the possession of the appellant contained **CRL.A.No.935 OF 2008** **9** the spirit also, there is serious lapse and legal infirmity on the side of prosecution in as much as the officers who conducted the investigation and laid the final report were not competent to officiate as Abkari Officers in strict letter of law. It is an admitted fact that PWs 8, 9 and 10 were Circle Inspectors of Excise attached to Alathur. The place where the alleged offence committed was within the territorial limits of Excise Range office, Kollengode which is a different Range. Going by the G.O.P. No.420/2009 dated 08.05.2009 issued by the Government of Kerala, the Abkari officers could function and also exercise powers only within their respective jurisdiction conferred by the said notification. This legal aspect was taken note in **Hamsa Koya** (cited supra) and this Court held that investigation conducted by officers under the Abkari Act in respect of crimes committed outside their local jurisdiction will stand vitiated and no conviction could rest on such prosecution at all. So far as this case is concerned, the final report submitted by PW10 is also vitiated as it was prepared by an officer in breach of Section 50 of the Abkari Act. 14. In as much as the jurisdiction of PW10 did not extend to Kollengode Range, law did not permit him to lay final report **CRL.A.No.935 OF 2008** **10** contravening Section 50 of the Act. In any view of the matter, the investigation as well as the institution of final report at the instance of officers who were not competent to perform their powers as Abkari officers outside their jurisdictional area is vitiated by illegality. The illegality pointed out above seems to have not been brought to the notice of the court below. Therefore, I hold that appellant is not guilty of offence punishable under Section 55(i) of the Act. 15. The learned counsel for the appellant submitted that the accused was found guilty of a charge which could seldom sustain even on admitted facts. Going by the charge framed by the court, he was prosecuted for offence punishable under Section 55(i) of the Act. On strict reading of Section 55(i) of the Act, what is made punishable is either an act of sale or storing materials for the sale. The facts placed by prosecution show that only an offence under Section 55(a) of the Act could have been attracted. This is also one of the reasons on which the conviction under Section 55(i) of the Act could be assailed. For all these reasons discussed above, I find that the appellant is not guilty of offence punishable either under Sections 55(a) or 55(i) of the Act and he is entitled to an order of acquittal. **CRL.A.No.935 OF 2008** **11** 16. In the result, appeal is allowed setting aside the judgment of conviction and sentence and appellant is acquitted of offence punishable under Section 55(i) of the Act. The learned counsel for the appellant submits that pursuant to the direction of this Court at the time of suspending the impugned sentence, an amount of Rs.50,000/- (Rupees Fifty Thousand only) was deposited by the appellant in the court below. If such payment has actually been made, the court below will return the same to the second appellant who is the wife of the deceased appellant. **Sd/-** ## **T.V.ANILKUMAR** ## **JUDGE** np