Shaji s/o Damodharan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942** ## **CRL.A.No.883 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 68/2002 DATED 11-04-2005 OF ADDITIONAL DISTRICT COURT (ADHOC)III, PATHANAMTHITTA** ## **APPELLANT/S:** **SHAJI, S/O. DAMODHARAN, PULAYANTAYYATHU HOUSE, VALLIKKODU KARA AND VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.** **BY ADVS. SRI.C.I.ABRAHAM SMT.BINDU ABRAHAM SRI.GEORGE KARITHANAM VARGHESE SRI.JOSEPH A.VADAKKEL** ## **RESPONDENT/S:** **STATE OF KERALA (REP. BY EXCISE INSPECTOR, KONNY RANGE, CRIME NO.36/98, OF THE EXCISE RANGE, KONNI) REPRESENTED BY, STATE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SMT.MAYA.M.N., GP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl. A. No. 883 of 2005 2 ## **P.V.KUNHIKRISHNAN, J.** ======================== Crl.A. No.883 of 2005 ======================== Dated this the 23[rd] day of September, 2020 ## **J U D G M E N T** The above appeal is filed challenging the conviction sentence imposed on the appellant as per judgment dated 11.04.2005 in SC No. 68 of 2002 on the file of Additional District and Sessions Judges(Adhoc) Fast Track Court-III, Pathanamthitta. The case is charge sheeted by the Excise Inspector, Konni Range alleging offences punishable under Section 8 and 55 of the Kerala Abkari Act. 2. The prosecution case is that, on 17.07.1998 at 12.15 p.m. the accused was found transporting 3 liters of illicit arrack in a can having a capacity of 10 liters through the Thrippara Nurumanappady road, in front of Thazhathil House. The case was detected by the Assistant Excise Inspector and party. 3. To substantiate the case, the prosecution examined PW1 to PW4. Exts. P1 to P7 are the exhibits Crl. A. No. 883 of 2005 3 marked on the side of the prosecution. MO1 is the material objects. 4. After going through the evidence and documents, the trial court convicted the accused under Section 8(2) read with 8(1) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of 2[1] /2 years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused was directed to undergo simple imprisonment for four months. Aggrieved by the conviction and sentence, this Crl. Appeal is filed. 5. Heard. 6. Admittedly, the case is detected by the Assistant Excise Inspector. This Court considered this point in detail and held that the Assistant Excise Inspector is not competent to detect an offence under the Abkari Act. 7. The Assistant Excise Inspector is not authorized to conduct search and seizure as per the Abkari Act till 8.5.2009. Admittedly in this case the seizure was on 17.07.1998. In _**Bhaskaran v. State of Kerala [2018**_ Crl. A. No. 883 of 2005 4 _**(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 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 Crl. A. No. 883 of 2005 5 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 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 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.” 8. 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 Crl. A. No. 883 of 2005 6 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 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 Crl. A. No. 883 of 2005 7 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, sealing and production of the accused and properties before Court, done by the Assistant Excise Inspector, would be well within his powers.” 9. In the light of the above authoritative judgments of this Court, the trial in this case is vitiated. It is also point out that the forwarding note is not marked in this case. That is also fatal to the prosecution. 10. In abkari cases, forwarding note is important Crl. A. No. 883 of 2005 8 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. 11. 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: “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 Crl. A. No. 883 of 2005 9 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))**_ .” 12. In the light of the above discussions, the prosecution against the appellant is not maintainable. Therefore, this criminal appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 11.04.2005 in SC No. 68 of 2002 on the file of Additional District and Sessions Judges(Adhoc) Fast Track Court-III, Pathanamthitta is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is canceled. **(Sd/-) P.V.KUNHIKRISHNAN, JUDGE** LU