State of Kerala v. M.T. Thomaskutty

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 6TH DAY OF APRIL 2016/17TH CHAITHRA, 1938** ## **CRL.A.NO. 1966 OF 2005 ( )** **---------------------------** ## **AGAINST THE JUDGMENT IN SC NO.179/2001 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK (ADHOC-II), ALAPPUZHA DATED 13-08-2003** **----------------------------------------------** **APPELLANT(S)/COMPLAINANT : -------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN** **RESPONDENT(S)/ACCUSED :** **-----------------------------------------** **M.T. THOMASKUTTY, S/O.THOMAS, MANGALAPPALLY VEEDU, KAVALAM DESOM, KUTTANAD.** **BY ADV. SRI. C.S. MANU** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. --------------------Crl. Appeal No.1966 of 2005 -----------------------------------------------Dated this the 6[th] day of April, 2016 -----------------------------------------** ## **J U D G M E N T** -------------------------- This appeal is preferred by the State of Kerala against the judgment of acquittal in S.C. No.179 of 2001 of the Additional Sessions Judge Fast Track, (Adhoc-II), Alappuzha under Sec.55(a) of the Abkari Act. The charge against the accused is that on 06.09.1999 at 10.00 a.m., the accused was found in possession of 20 bottles of beer, in two card board boxes near Krishnabhavan lodge, Alappuzha in boat jetty road in contravention of the Abkari Act, by the Assistant Excise Inspector, Excise Range Office, Alappuzha. Accused was arrested and the contraband articles were seized after preparing a mahazar. Reaching at the Excise Range office, he registered the crime. After completing investigation, Excise Inspector, Alappuzha laid charge before the Judicial First Class Magistrate court, Alappuzha. From there, the case was committed to Sessions Court, Crl. Appeal No.1966 of 2005 2 Alappuzha. Subsequently, it was made over to Additional Sessions judge. 2. During trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P3. MO1, MO2 and MO2(a) were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him under Sec.313 Cr.P.C. He did not adduce any defence evidence. The learned Additional Sessions Judge acquitted the accused. Being aggrieved by that, the State preferred this appeal. ## 3. Heard both sides. 4. The Assistant Excise Inspector, Alappuzha, detected the offence while he was conducting patrol duty on 06.09.1999, who was examined as PW1 in the trial court. The evidence of PW1 shows that while he was proceeding through the road in front of the Krishnabhavan lodge the accused was proceeding through the road with two card board boxes. Upon suspicion, he inspected the box and detected 12 bottles of beer in one box and 8 bottles in another box. The entire ## Crl. Appeal No.1966 of 2005 3 articles were seized after preparing Ext.P1 seizure mahazar. PW5 prepared Ext.P1 mahazar. PW1 identified MO1 series and MO2 series. Ext.P2 is the crime and occurrence report. PW2 identified his signature in Ext.P1. But another witness PW3 turned hostile. PW4 conducted investigation and laid charge before court. 5. According to S.4(d) of the Abkari Act, the Government by notification in the gazette may appoint officers to perform the acts and duties mentioned in Ss.40 to 53 inclusive of the Abkari Act. Under Sec.4(e) government may appoint subordinate officers of such classes and with such designations, powers and duties under the Act as may think fit. S.70 indicates that all notification and orders conferring powers, imposing duties and making appointments under this Act may respectively refer to the persons concerned specially by name or in virtue of their office or to classes of officials generally by their official titles, and all courts shall take judicial notice thereof. According to Sec.3(6) of the Abkari Act “ Abkari Inspector means an officer appointed Crl. Appeal No.1966 of 2005 4 by the Government under Sec.4(d) of the Abkari Act. As per notification SRO 234/67 dated 10.08.67 all officers not below the rank of excise inspectors are vested with the powers under Secs.40 to 53 are Abkari Inspectors. Therefore, only these officers specified under Sec.4(d) are officers invested with powers under Secs.40 to 53 of the Abkari Act are Abkari Inspectors. According to S.3(2) of the Abkari Act an Abkari Officer means the commissioner of excise, any officer or other person lawfully appointed or invested with powers under Sec.4 or Sec.5 of the Abkari Act. As per SRO 321/96 Dated 29.03.1996, Government have appointed all Police Officers of and above the rank of Sub Inspectors of Police in-charge-of law and Order and working in the General Executive Branch of Police Department within their respective jurisdiction, and all Revenue Officers of and above the rank of Deputy Collectors, as Abkari Officers vested with powers under Section 40 to 53. Hence, Excise Inspectors and above in Excise Department, Sub Inspectors and above in-charge-of Law and Order and ## Crl. Appeal No.1966 of 2005 5 working in the General Executive Branch in Police Department, and Deputy Collectors and above in Revenue Department, are Abkari Inspectors. 6. A reading of various provisions of the Act, it can be seen that wide powers are given to “Abkari Officers” and “Abkari Inspectors”. But, S.50 is more concerned about the “report of Abkari officer” which gives jurisdiction to a competent Magistrate to take cognizance of the offence. On a reading of S.50, it is crystal clear that the court can take cognizance only upon a valid report filed by “competent officer after investigation of the case as provided under S.50 of the Act.” S.40 deals with procedure on arrest and seizure. S.41 deals with disposal of persons arrested. In the present case, no such notifications are produced and the materials which referred to above do not show that the “Assistant Excise Inspectors” are conferred with powers that contemplated under Ss.40 to 53. In the present case, PW1 who was working as an Assistant Excise Inspector, Alappuzha was not given powers under the ## Crl. Appeal No.1966 of 2005 6 above provisions to effect the seizure and investigation. He was not conferred any power under S.50, to file report or complaint. A trial conducted based upon a report of an incompetent officer will render as illegal. 7. A Division Bench of this court in the decision in **Varkey v. State of Kerala [1993 (1) KLT 72]** , held: “ The consequence is that Excise Inspectors who filed the complaints in these cases had no authority to file such a complaint. The result is that the Sessions Court or the Special Court had no jurisdiction to take cognizance of the same. They could not have framed charge against the accused. The charge framed by them was without jurisdiction. The trial which followed the said charge must be treated as non est, because it was done without jurisdiction. If the trial was one held without jurisdiction, it cannot end in either conviction or acquittal. The court below ought to have discharged the accused under S.227 of the Code of Criminal Procedure”. 8. The above decision was relied by a Full Bench of this Court, in **Abdul Rehman v. State of Kerala [1995 (1) KLT 234 (FB)]** , in which it was observed that the excise inspector who filed the ## Crl. Appeal No.1966 of 2005 7 complaint having no authority to file such complaint trial must be treated as non est and cannot end in conviction or acquittal. In **Saji @ Kochumon v. State of Kerala [2010 (3) KLT 471]** this Court held that final report filed by a non empowered officer will render as non est and a court cannot act upon such report. In this case PW1, working as Assistant Excise Inspector, was not an authorized officer as contemplated by the provisions of the Abkari Act, especially, Sections 4(d), 4(e) and 70 of the Act. Therefore, the seizure and arrest made by PW1 was without authorization and jurisdiction. A perusal of the above decision, it is clear that the Assistant Excise Inspector is a non empowered officer to detect the offence under the Abkari Act. There is no merit in this appeal and it is dismissed accordingly. Sd/- NS/06/04/2016 **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge