Sasi S/o Thankappan Nadar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942** ## **CRL.A.No.291 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 821/2000 DATED 17-01-2006 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE FOR THE TRIAL OF ABKARI ACT CASES,NEYYATTINKARA** ## **APPELLANT/ACCUSED:** **SASI S/O THANKAPPAN NADAR,HOUSE NO.KP VIII/615, KUZHIYANVILA VEEDU,, PAKALOOR, KALLIYOOR, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.BLAZE K.JOSE** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY THE EXCISE INSPECTOR, THIRUVANANTHAPURAM.** ## **OTHER PRESENT:** **RI BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.291 OF 2006** **2** ## **JUDGMENT** ## **Dated this the 15th day of December 2020** Appellant is the accused in SC No. 821 of 2000 on the file of the Additional Sessions Judge For The Trial Of Abkari Act Cases, Neyyattinkara. Above case is charge sheeted by the Excise Inspector, Thiruvananthapuram, alleging offence punicahable under Section 58 of the Abkari Act. 2. The prosecution case is that, the Assistant Excise Inspector, Thiruvananthapuram, Excise range, found the accused in possession of two bags, each containing 25 bottles of indian made foreign liquor. Hence it is alleged that the accused committed offence punishable under Section 58 of the Abkari Act. 3. To substantiate the case, the prosecution examined PW1 to PW4. Exts.P1 to P7 are the documents marked on the side of the prosecution. MO1 to MO4 are the material objects. 4. After going through the evidence and documents the trial Court found that the accused committed the offence punishable under Section 58 of the Abkari Act. He is sentenced to undergo rigorous imprisonment for one year and to pay a fine of 1,00,000/-. In default of payment of fine, the accused is **CRL.A.No.291 OF 2006** **3** directed to undergo rigorous imprisonment for three months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard the learned counsel for the appellant and learned Public Prosecutor. 6. The learned counsel for the appellant submitted that, the entire prosecution in this case is vitiated for the simple reason that, the search, seizure and arrest in this case is by an Assistant Excise Inspector, who is not an authorized person as per the Abkari Act. The learned counsel submitted that, for that simple reason the accused is entitled the benefit of doubt. The learned counsel also submitted that the forwarding note is not marked in this case. On that ground also the accused is entitled the benefit of doubt. 7. The point for consideration in this case is whether the appellant committed offence under Section 58 of the Abkari Act. 8. Admittedly, PW1 is an Assistant Excise Inspector. He conducted the detection, search, seizure and arrest in this case. An Assistant Excise Inspector is not an authorized person to detect, search, seize and arrest the accused in abkari case, till **CRL.A.No.291 OF 2006** **4** 08-05-2009. Admittedly, in this case the alleged seizure was on 23-09-1997. As on that day Assistant Excise Inspector is not an authorized person to conduct detection,search,seizure and arrest of an accused in abkari cases. I think on that ground itself the accused is entitled to the benefit of doubt. 9. The Assistant Excise Inspector is not an authorized to conduct search and seizure as per the Abkari Act till 8.5.2009. Admittedly in this case the seizure was on 23.09.1997. 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. 10. 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 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 **CRL.A.No.291 OF 2006** **5** 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 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 **CRL.A.No.291 OF 2006** **6** 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.” 11. 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 notification and orders conferring powers, imposing duties and making appointments under the act may 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 **CRL.A.No.291 OF 2006** **7** 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 thereafter no notification was issued authorising 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 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, **CRL.A.No.291 OF 2006** **8** sealing nd production of the accused and properties before Court, done by the Assistant Excise Inspector, would be well within his powers.” 12. In the light of the above authoritative judgments of this Court, the trial in this case is vitiated. 13. Moreover, the forwarding note is also not marked in this case. The importance of forwarding note is concidered by this Court in several decisions. 14. In abkari cases, forwarding note is important because the specimen seal used by the detecting officer will find a place in it. It is the fundamental duty of the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the analyst. Forwarding note is one of the links to prove the prosecution case in abkari cases. 15. This Court in several decisions considered the relevancy of the forwarding note. Some of the decisions are _**Gireesh @ Manoj v. State of Kerala (2019(4) KLT 79), Vijayan @ Pattalam Vijayan and another v. State of Kerala (2018 (2) KHC 814)**_ and _**Prakasan and another v. State of Kerala (2016 KHC 96)**_ . The relevant portion of the judgment in _**Gireesh**_ 's case (supra) extracted hereunder: **CRL.A.No.291 OF 2006** **9** “14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by PW5 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See Prakasan v. State of Kerala (2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16)).” 16. In the light of the above discussion, I think the appellant in this case is entitled the benefit of doubt. Therefore, this Criminal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 17-01-2006 on the file of the Additional Sessions Judge For The Trial Of Abkari Act Cases, Neyyattinkara, is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** **sa**