SREEKUMAR, SREEKALA SADANATHIL vs. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944 CRL.A NO. 1447 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENTSC 593/2001 OF SPECIAL COURT ``` ``` FOR ABKARI ACT CASES, KOTTARAKKARA ``` ## **`APPELLANT/S:`** ``` SREEKUMAR, SREEKALA SADANATHIL, KEEZHAVATTA MURI,, ELAMADU VILLAGE. BY ADVS. SRI.ALAN PAPALI SRI.PRASUN.S ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,, ERNAKULAM., (EXCISE INSPECTOR, CHADAYAMANGALAM). ``` ## **`OTHER PRESENT:`** ``` SRI.SANAL.P.RAJ, PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- Crl.A. No.1447 of 2007 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== Crl.A.No. 1447 of 2007 ============================================================= Dated this the 25[th ] day of July, 2022 ## **JUDGMENT** This is an appeal filed against the judgment dated 03.7.2007 in SC No.593 of 2001 of the files of the Additional Sessions Judge (Abkari Cases), Kottarakkara. The above case is chargesheeted against the appellant alleging offences punishable under Sections 8(1) and 8(2) of the Abkari Act. 2. The prosecution case is that on 13.08.1999 at about 6.40 PM, the accused was in possession for sale and in transit of 4 litres of arrack in a jerry can through Pallimukku-Mukkala junction panchayat road in front of the petty shop owned by Balakrishnan at Keezhvatta muri which was detected by CW1, the Assistant Excise Inspector, Excise Range, Chadayamangalam and his party. -3- Crl.A. No.1447 of 2007 3. To substantiate the case prosecution examined PW1 to PW6. Exts.P1 to P6 are the exhibits marked from the side of prosecution. MO1 and MO2 are the material objects. After going through the evidence and the documents, the trial court found that the accused committed the offence under Section 8 (1) and (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 to undergo rigorous imprisonment for a period of six months. Aggrieved by the conviction and sentence, the accused filed this appeal. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. The counsel for the appellant submitted that the accused is entitled acquittal for the simple reason that it is a case in which the Assistant Excise Inspector detected the -4- Crl.A. No.1447 of 2007 offence. The counsel also submitted that the forwarding note is not marked in this case and for that reason also, the accused is entitled acquittal. In addition to this, the counsel also submitted that there is three days delay in producing the article before the Court and there is no explanation for the same. The Public Prosecutor, on the other hand, supported the prosecution case and submitted that there is oral and documentary evidence to prove the case. 6. Admittedly, PW6 the Assistant Excise Inspector detected the offence. He is not an authorised officer as on 13.08.1999. This point is considered by this Court in several decisions. 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 : -5- Crl.A. No.1447 of 2007 “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 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 -6- Crl.A. No.1447 of 2007 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.” 7. 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 -7- Crl.A. No.1447 of 2007 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 -8- Crl.A. No.1447 of 2007 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, sealing and production of the accused and properties before -9- Crl.A. No.1447 of 2007 Court, done by the Assistant Excise Inspector, would be well within his powers.” 8. Moreover, the forwarding note is also not marked in this case. Importance of the forwarding note is considered by this Court in several decisions. The non production of the same is fatal to the prosecution. 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 -10- Crl.A. No.1447 of 2007 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)** ).” 9. In addition to all these, there is delay of three days in producing the contraband before the Court concerned. The delay in producing the contraband is fatal to the prosecution, which is considered by this Court in _**Thulaseedharan Raghavan**_ **v.** _**State of Kerala**_ **[2021 KHC 3540],** in _**Surendran**_ **v.** _**State of Kerala**_ **[2021 KHC 2441]** , in _**Ramachandran**_ **v.** _**State of Kerala and Another**_ **[2021 KHC 3235]** , in **Sukumaran v. State of Kerala (2019(3) KLT 920), Ravi v. State-Sub Inspector of Police, Meppadi (2018(5) KHC 352)** and . **Vikraman v. State of Kerala (2018(1) KLT 822)** Relevant portion of the judgment in **Ravi's case** (supra) is extracted hereunder: -11- Crl.A. No.1447 of 2007 “8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt. 9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note.” 10. In the light of he above discussion, I think the benefit of doubt will go to the appellant. Therefore, this appeal is to be allowed. The appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 03.07.2007 in -12- Crl.A. No.1447 of 2007 SC No.593 of 2001 on the file of Additional Sessions Judge (Abkari Cases) Kottarakkara is set aside. The bail bond, if any, executed by the accused is cancelled. sd/- **P.V.KUNHIKRISHNAN** **JUDGE** das