Sunilkumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 04TH DAY OF DECEMBER 2020 / 13TH AGRAHAYANA, 1942** ## **CRL.A.No.1520 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 1998/2002 DATED 27-05-2006 OF III ADDITIONAL DISTRICT COURT, KOLLAM** ## **APPELLANT/ACCUSED:** **SUNILKUMAR, S/O. SREEDHARAN, POIKAYIL VEEDU, KAITHAKKUZHI WARD, ADICHANALLOOR VILLAGE, KOLLAM DISTRICT.** **BY ADVS. SRI.V.VENUGOPALAN NAIR SRI.C.UNNIKRISHNAN (KOLLAM)** ## **RESPONDENT/COMPLAINANT:** **1 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 THE EXCISE INSPECTOR EXCISE RANGE, CHATHANNOOR. BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-12-2020, THE COURT ON 04-12-2020 DELIVERED THE FOLLOWING:** **CRL.A.No.1520 OF 2006** 2 ## **JUDGMENT** **Dated this the 4th day of December 2020** Appellant is the accused in S.C.No.1998 of 2002 on the file of the III Additional Sessions Judge,Kollam. Above case is charge sheeted against the accused alleging offence punishable under Section 55 (a) of the Abkari Act. 2. The prosecution case is that, PW3, the Preventive Officer of Chathanoor Range, found the apppellant transporting 17 politheen covers of 200 ml each which contain arrack. It is alleged that the preventing officer seized the contraband articles and registered this case. 3. To substantiate the case, prosecution examined PW1 to PW5. Exts.P1 to P5 are the documents marked on the side of the prosecution. MO1 to MO4 are the material objects. 4. After going through the evidence and the **CRL.A.No.1520 OF 2006** 3 documents, the trial court found that the accused committed the offence punishable under Section 55 (a) Abkari Act. He was sentences to undergo rigorous imprisonment for four years and to pay a fine of Rs. 1,00,000/-. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for one year. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant submitted that, the appellant is entitled the benefit of doubt in this case, because prosecution has not produced forwarding note in this case. The learned counsel also submitted that, the entire prosecution is vitiated because the Preventive Officer assuming the charge of the Excise Inspector registered the case. The learned counsel submitted that, the preventive officer is not legally authorized to register the case. **CRL.A.No.1520 OF 2006** 4 7. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove this case. The learned public prosecutor also submitted that, there is nothing to disbelieve the evidence of PW3, who is the detecting officer and PW5 is the Excise guard. 8. The point for consideration in this case is whether the appellant committed offence punishable under Section 55 (a) of the Abakri Act. 9. Admittedly, PW1 registered the case. According to PW1 since the Excise Inspector is not available in the station, he is in charge of the Excise Inspector and therefore, he registered this case. This point is considered by this Court in detail on earlier occasion. Abkari Act, authorizes only certain persons to do certain Acts. There cannot be any delegation of power by the Excise Inspector to the Preventive Officer for registering a case, when the statute mandate that the Government is the authority to authorize officers to do the activities as per the provisions of the Abkari Act. **CRL.A.No.1520 OF 2006** 5 10. This point is considered by this Court in detail in the judgment dated 21.12.2015 in Crl.A No.300/2006. The relevant portion of the judgment is extracted hereunder. “9. After having heard learned counsel for the appellant and the learned Public Prosecutor and having perused the records and provisions of the Act, there seems to be some force in the submission of the learned counsel for the appellant. To understand the position as contended by the learned counsel for the appellant, reference to the provisions is required. First among them being the definition of 'Abkari Officer' as contained in Section 3(2) of the Abkari Act which reads as follows: “3(2) Abkari Officer:- “Abkari Officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5.” Section 3(6) defines 'Abkari Inspector' as follows: “3(6) Abkari Inspector.- “Abkari Inspector” means an officer appointed under Section 4, clause (d).” Section 4 reads as follows: “4. The Government may, by notification in the Gazette:- (a) The Government may appoint an officer to control the administration of the Abkari Department:Appoint an officer, who shall be styled the commissioner of Excise and who shall, subject to the general control of the Government have Control of the administration of the Abkari Department and of the collection of the Abkari Revenue or of both; **CRL.A.No.1520 OF 2006** 6 (b) May appoint any person other than the Commissioner to perform all or any of his duties:- Appoint any person other than the Commissioner of Excise to exercise all or any of the powers and to perform all or any of the duties of the Commissioner of Excise, subject to the control of the Government. (c) May withdraw Abkari powers from Commissioner or other officer appointed under clause (a) or clause (b):- Withdraw from the Commissioner or other officer appointed under clause (a) or clause (b) any or all of his powers in respect of the Abkari Revenue; (d) May appoint officer to take action under Sections 40 to 53:- Appoint officers to perform the acts and duties mentioned in Sections 40 to 53 inclusive of this Act; (e) And subordinate officers:- Appoint subordinate officers of such classes and with such designations, powers and duties under this Act as the Government may think fit. (f) May appoint any officer of Government or persons to act as above:- Order that all or any of the powers and duties assigned to any officer under clauses (d) and (e) of this section shall be exercised and performed by any Officer of Government or any person. (g) Delegate to any Abkari Officer all or any of their powers under this Act.” It may be noticed at once that Abkari Inspector means an officer appointed under Section 4 clause (d). It means those officers mentioned in Sections 40 to 53 inclusive of the Act. So that Abkari officers empowered to act under Sections 40 to 53 alone can qualify as Abkari Inspector. Section 5 reads as follows: “5. The Government may, from time to time, make rules:- (1) Prescribing the powers and duties under this Act to be **CRL.A.No.1520 OF 2006** 7 exercised and performed by Abkari Officers of the several classes; and (2) regulating the delegation by the Government or by the Commissioner of Excise of any powers conferred by this Act or exercised in respect of Abkari Revenue under any law for the time being in force.” The notification issued in pursuance to the above provision, S.R.O. 234/1967 which was in force as on the date of incident in this case contained entry No. 12 which has already been quoted. One may look into entry No.8 in the above notification which reads as follows: 8. All officers of the Excise Department not below the rank Within the areas of Excise Inspectors to perform for which they the acts and duties mentioned are appointed. in Sections 40 to 53 inclusive of the Act. Therefore, the distinction between entries 8 and 12 is conspicuous. Entry No.8 in the notification says that all officers of the Excise Department not below the rank of Excise Inspectors can perform the acts and duties mentioned in Sections 40 to 53 of the Act. Entry No.12 says that Preventive Officer can only exercise powers for the purposes of Sections 31,32, 34, 35, 38, 39, 53 and 59. Going by the scheme of the Act, Preventive Officer can take such steps so as to prevent the commission of crime, even arrest the accused without warrant. Their power ceases when they produce the articles and the accused before the Excise Inspector and thereafter they cannot proceed to exercise powers under Sections 40 to 53 of the Act.” 11. The above judgment squarely cover the point raised by the appellant. Section 40 of the Abkari Act says about the procedure on arrest and seizure. A **CRL.A.No.1520 OF 2006** 8 Preventive Officer is authorized as per the Abkari Act to arrest and seize contraband articles. But there is no authorization to the Preventive Officer to do the activities prescribed under Section 40 of the Abkari Act. The Preventive Officer could not assume charge simply because the excise officer is not present in the office. Without authorization he cannot register a case. If an unauthorized person register a case, it will go to the root of the case. Hence, I think the appellant in this case is entitled to the benefit of doubt. 12. More over admittedly, the forwarding note is also not marked in this case. The forwarding note is an important document to be marked by the prosecution in Abkari cases. Unless the prosecution is able to show that, the seized article reached in the hands of the analysts. The prosecution will not succeed. 13. 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 **CRL.A.No.1520 OF 2006** 9 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. 14. 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 for analysis in a tamper proof **CRL.A.No.1520 OF 2006** 10 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)).”** 15. In the light of the above authoritative judgments, it is clear that the non production of the forwarding note is fatal to the prosecution. That itself can be a ground for acquitting the accused. 16. In the light of the above discussion, I think the appellant in this case is entitled the benefit of doubt. 17. Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the accused as per the judgment dated 27-05-2006 in S.C. No.1998 of 2002 on the file of the III Additional Sessions Judge, Kollam, 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** **sa**