Sudheesh Kumar and Subran v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID FRIDAY, THE 13TH DAY OF JANUARY 2017/23RD POUSHA, 1938 CRL.A.No. 973 of 2012 () ------------------------------ APPELLANT/ACCUSED(S): ---------------------------------- 1. SUDHEESH KUMAR, AGED 34 YEARS, S/O.NARAYANAN, VAYALIKADA VEEDU, KOTTIYOOR POST, THALASSERY TALUK, KANNUR DISTRICT. 2. SUBRAN, AGED 47 YEARS, S/O.KUNHAYYAPPAN, MURINGOKKARAN VEEDU, AALOOR, VELLANGIRA POST, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ## BY ADV. SRI.T.G.RAJENDRAN RESPONDENT/COMPLAINANT: --------------------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A.No. 973 of 2012 ## APPENDIX PETITIONERS' EXHIBITS: -------------------------------- ANNEXURE-1: TRUE COPY OF CERTIFICATE ISSUED BY THE VAZHIKKADAV VILLAGE OFFICER ANNEXURE II: TRUE COPY OF M.R.I REPORT ISSUED FROM THE ELITE MISSION HOSPITAL, THRISSUR ANNEXURE III: TRUE COPY OF THE DISCHARGE SUMMARY FROM ELITE MISSION HOSPITAL, THRISSUR. ANNEXURE IV: TRUE COPY OF THE MEDICALCERTIFICATE ISSUED BY DR.BHAVAN SANKAR P.S, CHALAKUDY, THRISSUR. /True copy/ P.S to Judge ## **P.UBAID, J.** ## **~~~~~~~~~~ Crl.A No.973 of 2012 ~~~~~~~~~~~ Dated this the 13[th ] January, 2017** ## **J U D G M E N T** The appellants challenge the conviction and sentence against them under section 55(a) of the Kerala Abkari Act ('the Act' for short) in S.C 159/2010 of the Court of Session, Palakkad. 2. The prosecution case is that, at about 10.30 a.m on 24.3.2009, they were found transporting a huge quantity of 1120 litres of spirit contained in 35 plastic jars in the vehicle No.TN63V.2914. They were arrested on the spot by the Circle Inspector of Excise, Chittoor, and the contraband articles including the vehicle were seized as per mahazar. The Circle Inspector in turn produced the properties and the accused in the Excise Range Office, where an Assistant Excise Inspector registered the crime. He also produced the properties before the Deputy Commissioner of Excise. Investigation was taken over by an Excise Inspector of the Palakkad Excise Enforcement and Anti-Narocotic Special Squad, and he also submitted final report in court. After complying with the procedure, the case was committed to **Crl.A No.973 of 2012** **2** the Court of Session by the committal court, and the case was later made over to the learned Additional Sessions Judge (Adhoc No.1), Palakkad for trial and disposal. 3. The accused appeared before the trial court and pleaded not guilty to the charge framed against him under Section 55(a) of the Act. The prosecution examined seven witnesses including the Detecting Officer and proved Exts.P1 to P16 documents. MO1 to MO3 properties were also identified during trial. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances. They did not adduce any evidence in defence. However, Ext.D1 contradiction in the statements of witnesses was proved. 4. On an appreciation of the evidence, the trial court found the accused guilty under Section 55(a) of the Act. On conviction, they were sentenced to undergo rigorous imprisonment for four years each, and to pay a fine of ₹ 1,00,000/- each by judgment dated 16.7.2012. Aggrieved by the judgment of conviction, the accused have come up in appeal. 5. When this appeal came up for hearing, the **Crl.A No.973 of 2012** **3** learned counsel for the appellant submitted that the appellants are entitled for acquittal on the basis of so many illegalities and infirmities in the prosecution case as regards the process of investigation, the final report, and also registration of crime. Of course, the crime in this case was detected by a Circle Inspector of Excise within his jurisdiction. He in turn produced the accused and the properties in the Excise Range Office where an Assistant Excise Inspector registered the crime. This is the first infirmity or illegality argued by the defence. As on the date of detection, an Assistant Excise Inspector was not authorised under the law to discharge any function under the Act. Only in May 2009, the Government of Kerala issued a notification SRO 361/09 dated 8.5.2009 authorising Assistant Excise Inspectors also to discharge the functions as Abkari Officers under the Kerala Abkari Act. As per this notification, all the powers given to the Excise Inspectors are given to Assistant Excise Inspectors also. But the detection in this case was made on 24.3.2009, before the Government notification. As per the Government notification SRO 234/1967, the Government has invested different **Crl.A No.973 of 2012** **4** categories of Excise Officials with powers under the Kerala Abkari Act. The Government notification also specifies the territorial limits and jurisdiction within which the different categories will have to discharge functions. If at all the Assistant Excise Inspector was in charge of Excise Inspector, that will not justify the registration of crime by him. Crimes under the Abkari Act can be registered only by the persons authorised by Government Notification under Section 4 of the Act. Such powers are given to Excise Inspectors. An Assistant Excise Inspector or Preventive Officer is not given powers to register crime under the Act. So a crime registered by an incompetent officer, and the prosecution built on it must collapse. 6. Another infirmity argued by the defence is that properties were produced by the Assistant Excise Inspector before the Deputy Commissioner of Excise. The government has issued notification appointing Assistant Excise Commissioner as authorised officer under Section 67B of the Act. The properties seized by a detecting officer cannot be produced before any other authority not competent as authorised officer under Section 67B of the Act. This is also **Crl.A No.973 of 2012** **5** a very material infirmity or illegality in the prosecution case. 7. Another illegality argued by the defence is that investigation was conducted in this case by an unauthorised person. Of course, investigation was conducted by an Excise Inspector. The 1967 notification issued by the Government is very clear that Abkari officers authorised thereunder shall exercise their functions and duties within the area specified or within their territorial limits. So, only the Excise Inspector, having jurisdiction over the area where the offence was detected, can make investigation as abkari officer under the Act. In this case investigation was not conducted by such an officer having jurisdiction over the area. Yet another infirmity argued by the defence is that the final report was also filed by a wrong person. Here it was submitted by the Excise Inspector, who conducted investigation. The points stated above are covered by so many decisions of this Court. Those are _**Subrahmaniyan v. State of Kerala**_ **(2010(2) KLT 470)** , _**Sasidharan v. State of Kerala**_ **(2012(2) KLT 392) and** _**Krishnan N. v. State of Kerala (2015(1) KHC 822)**_ **.** In all these cases this Court has consistently held that the functions under the **Crl.A No.973 of 2012** **6** Kerala Abkari Act can be discharged and performed only by Abkari officers specifically authorised by the Government under Section 4 of the Act. In this case I find that the whole prosecution is tainted with serious illegalities and infirmities, the benefit of which must necessarily go to the accused. Just because the case is proved on facts, the accused cannot be found guilty or convicted when there are very serious illegalities and infirmities in the prosecution case. In the result, this appeal is allowed. The conviction and sentence against the appellants in S.C No.159/2010 of the court below will stand set aside on the finding that the appellants are not guilty of the offence under Section 55(a) of the Kerala Abkari Act, and accordingly they are acquitted of the said offence in appeal under Section 386(b)(i) of the Cr.P.C. The appellants are released from prosecution, and the bail bond, if any, executed by them will stand discharged. Sd/- **P.UBAID JUDGE** /True copy/ P.S to Judge ma