Suresh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **MONDAY, THE 20TH DAY OF MARCH 2017/29TH PHALGUNA, 1938** ## **CRL.A.No. 1727 of 2011 (A)** **-------------------------SC 113/2011 of ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM** =============== **APPELLANT/ACCUSED NO.1:** **-----------------------** **SURESH, AGED 20/2008,S/O.SANTHOSH THANNIPPARA HOUSE, KONNATHADI VILLAGE UDUMBANCHOLA TALUK.** **BY ADVS.SRI.C.M.TOMY SRI.K.J.JOSEMON SRI.MATHEW SKARIA** **RESPONDENT/COMPLAINANT:** **-----------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, PIN 682031.** **BY PUBLIC PROSECUTOR SRI.ALEX M. THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-03-2017 ALONG WITH Crl.APPEAL No.1875/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SD** **“CR”** ## **P.UBAID, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.A. Nos. 1727 & 1875 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of March, 2017 ## **J U D G M E N T** The two accused in S.C.No. 113 of 2011 of the Court of Session, Ernakulam, are the appellants in these two appeals. They challenge the conviction and sentence against them under Section 55(i) of the Kerala Abkari Act (hereinafter referred to as 'the Act'). 2. The two accused faced prosecution before the court below on the allegation that at about 10.00 p.m. on 02.10.2008 at Kothamangalam, within the Kothamangalam Excise Range, they were found in possession of 18.375 litres of Indian Made Foreign Liquor, contained in 49 bottles of 375 ml capacity, for the purpose of illicit sale. The offence was detected by a Circle Crl.Appeal Nos.1727 & 1875 of 2011 2 Inspector of the Excise Enforcement and Anti-narcotic Special Squad, Ernakulam, as part of a joint drive made by the said squad, and also the Excise Officials of the Kothamangalam Excise Circle and the Excise Range, for detecting offences under the Kerala Abkari Act within the range. The two accused were arrested by the Circle Inspector of the said Squad, and the quantity of liquor seized from their possession was seized as by him as per a mahazar. After complying with the procedural formalities as regards sampling etc., the accused and the properties were produced at the Excise Range Office, Kothamangalam, where an Excise Inspector of the Range registered the crime and occurrence report. Investigation was later taken over by an Excise Circle Inspector of the North Paravur Excise Circle, and after investigation, he submitted final report before the Judicial First Class Magistrate Court, Kothamangalam. 3. After complying with the procedure prescribed under the law, the learned Magistrate Crl.Appeal Nos.1727 & 1875 of 2011 3 committed the case to the Court of Session, Ernakulam, from where it was made over to the learned Additional Sessions Judge (Adhoc-I), Ernakulam, for trial and disposal. 4. The two accused appeared before the trial court, and pleaded not guilty to the charge framed against them under Sections 55(a) & 55(i) of the Act, and claimed to be tried. The prosecution examined 5 witnesses, including the detecting officer, and proved Exts.P1 to P10 documents. The MO1 to MO6 properties were also identified during trial. 5. When examined under Section 313 Cr.P.C., the two accused denied the incriminating circumstances, and projected a defence of total denial. The accused examined a witness on their side as DW1 in defence. 6. On an appreciation of the evidence, the trial court found the two accused not guilty under Section 55(a) of the Act, and accordingly, they were acquitted of the said offence. However, the two accused were found guilty under Section 55(i) of the Act. On conviction thereunder, Crl.Appeal Nos.1727 & 1875 of 2011 4 they were sentenced to undergo rigorous imprisonment for three years each, and to pay a fine of 1 lakh each, by₹ judgment dated 31.8.2011. Aggrieved by the judgment of conviction, the two accused have come up in appeal. 7. Crl.A. No. 1727 of 2011 is the appeal brought by the first accused, and Crl.A.No. 1875 of 2011 is the appeal brought by the second accused. 8. When the two appeals came up for hearing, the learned counsel for the appellants submitted that the factual aspects as regards detection and arrest in this case need not be probed into, because the appellants are entitled for acquittal on the ground of very serious illegalities and infirmities in the process of detection, and the process of investigation. The defence is that the detection in this case was made by an incompetent Excise Official, and investigation was also done by another incompetent Excise Official. Now let me see whether the prosecution case is vitiated by illegalities or infirmities as the defence would contend. Crl.Appeal Nos.1727 & 1875 of 2011 5 9. Of the 5 witnesses examined in the trial court, PW2 is the Circle Inspector of the Excise Enforcement and Anti-narcotic Special Squad, who detected the offence, PW5 is the Excise Inspector of the Kothamangalam Excise Range who registered the Ext.P8 crime and occurrence report, and PW4 is the Circle Inspector of Excise, North Paravur who conducted investigation, and submitted final report in court. PW1 is the Village Officer who prepared the Ext.P1 scene plan. The defence of the two appellants is mainly on the competence of the Excise Circle Inspector who detected the offence in this case, and also on the competence of the Excise Circle Inspector who conducted investigation and submitted final report. 10. The place of detection in this case is within the Kothamangalam Excise Range. Though the Excise Officials of the Kothamangalam Excise Range were also there in the detection party, a Circle Inspector of the Special Squad opted to make detection in this case, and a Crl.Appeal Nos.1727 & 1875 of 2011 6 Circle Inspector of another Excise Circle investigated the case. These are the areas where discussion on legal aspects is required. 11. This Court has consistently held in so many decisions like **Subramaniyan v. State of Kerala [2010 (2) KLT 470], Sasidharan v. State of Kerala [2012 (2) KLT 392], Hashim v. Assistant Sub Inspector [2014 (2) KLT 346], Haridas v.State of Kerala [2015(1)KLT 958]** etc that only officers specifically authorised by the Government under Section 4 of the Act as Abkari Officers, can discharge the various functions under the Act, like arrest, detection of offence, investigation etc. **Haridas v.State of Kerala** is a case where an Excise Inspector attached to another Excise Range conducted investigation. The Excise Inspector claimed authority for investigation on the basis of an authorisation given by the Assistant Excise Commissioner. This Court held that what is required is a specific Government notification authorising particular category of officers as Abkari Officers within specified Crl.Appeal Nos.1727 & 1875 of 2011 7 limits, and that such powers cannot be conferred by the higher officials. 12. In this case, the offence was detected by a Circle Inspector of the Excise Enforcement and Anti Narcotic Special Squad. The detection was made on 02.10.2008. The Government notification issued as SRO 234/1967 (Government of Kerala) had authorised various categories of Excise Officials to discharge the various functions under the Kerala Abkari Act as Abkari Officers. By the said notification only Abkari Officials attached to Excise Range Offices or Circles, or such officers in charge of distilleries, warehouses, wineries, etc., were given powers as Abkari Officers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Excise Officials of special wings or squads like Excise Enforcement and Anti Narcotic Special Squad, or the Excise Intelligence Squad were not given such powers under the 1967 Government notification. In 2009, the Government of Crl.Appeal Nos.1727 & 1875 of 2011 8 Kerala issued another notification, SRO 361/2009 dated 08.05.2009 in suppression of the 1967 notification. By the said Government Order issued in 2009, special categories like Excise Officials of the Excise Enforcement and Anti Narcotic Special Squad, and Excise Intelligence Squad were given powers by the Government. Thus, as on the date of detection in this case such categories had no power of detection. Only the Excise Officials of the regular wing had such powers under the 1967 Government Order. 13. The learned Public Prosecutor in charge of the case submitted that in view of the proviso to the SRO 234/1967 the detection made by the Circle Inspector of Excise in this case will have to be accepted as legal. The proviso to the said Government Order is that with reference to Sections 31 and 34 of the Act there shall be no limit of jurisdiction within the State of Kerala for the Abkari and other department officers named therein; but all persons arrested and the properties seized shall, without delay, be made over to the Excise Officer possessing local Crl.Appeal Nos.1727 & 1875 of 2011 9 jurisdiction. While conferring different powers under the Government Order, some jurisdictional limits were also prescribed for the different categories of Excise Officials. The spirit and purport of the proviso is that as regards detection under Section 31 or under Section 34 of the Act, there shall not be any limit of jurisdiction, which means that an Abkari Officer having powers of detection under Section 31 or Section 34 of the Act can make detection, and arrest the accused, or seize properties, even beyond his territorial limits. But, once such a detection is made by him, he will have to report the fact of seizure and arrest at the concerned Range office. There will end his powers. Now the question is whether the proviso applies only to those categories covered by the Government notification, or whether other categories who are not specifically authorised or appointed under the Government Order, can avail the benefit of the proviso. I find that the said proviso, or the spirit of the proviso, applies only to the officers specifically appointed by the Government notification. Crl.Appeal Nos.1727 & 1875 of 2011 10 Other categories of officers who are not appointed or authorised as Abkari Officers by the Government as per the said Government notification of 1967, cannot in any circumstance claim the benefit of the exemption granted by the Government under the said proviso. The said proviso is meant and intended only to save the detections made by the officers covered by the notification, beyond their territorial limits. No other category of officers can claim such protection. In this case, the detecting officer does not belong to the category covered by the Government notification of 1967. Such categories of officers were given powers by the Government only in 2009. 14. Here, the investigation was also done by the Circle Inspector of another Excise Circle. PW4 is the Excise Circle Inspector who investigated the case. The crime was registered properly by an Excise Inspector of the Kothamangalam Excise Range. The place of detection is within the Kothamangalam Excise Range. An Abkari officer Crl.Appeal Nos.1727 & 1875 of 2011 11 of another Excise Range or Circle cannot conduct investigation or submit final report. An Excise Circle Inspector who is not authorized under the law detected the offence within the Kothamangalam Excise Range, and an Excise Circle Inspector of yet another Excise Circle conducted investigation and submitted final report. Such unauthorised acts cannot in any circumstance be ratified or condoned. A case built on the detection made by an incompetent officer, and investigated by another incompetent officer, will have to collapse necessarily. In the above situation, I feel it not necessary to go to the factual aspects of the alleged search, arrest and seizure. 15. Section 31 of the Act deals with search in houses and other buildings, and Section 34 of the Act deals with seizure or arrest generally. Detection can be made by the competent officers only within their jurisdiction. The proviso to the Government Order says otherwise that the said limitation prescribed by way of jurisdictional limits under the Government Order will not apply to detection Crl.Appeal Nos.1727 & 1875 of 2011 12 made under Section 31 or Section 34 of the Act. If such a proviso is not there, or if such a protection is not given to detections made by other officers, law breakers can very conveniently escape by the time the right officer of the concerned Range or Circle turns up or rushes to detect the offence. That is why the Government added a proviso to the Government Order, that as regards detection under Section 31 or Section 34 of the Act, the limit of jurisdiction shall not apply. As regards the other powers like the power to register crimes, or the power to conduct investigation, there is no such protection or relaxation. The proviso is never meant to give authority to officers not covered by the Government Order. Only those categories of officers specifically empowered and covered by the Government notification issued under Section 4 of the Act can claim the benefit of the proviso, and only those categories can detect offences under Sections 31 or 34 of the Act beyond their territorial limits. Such an exception under the proviso, or such a relaxation brought with a particular object, Crl.Appeal Nos.1727 & 1875 of 2011 13 cannot be extended to other categories who are not authorised by the Government under Section 4 of the Act. So, I find that the Circle Inspector of Excise who detected the offence in this case cannot find any excuse or justification under the proviso to the Government notification issued in 1967 as SRO 234/1967. I find that he was incompetent to make detection, and that investigation was also conducted by another incompetent officer. The final report was also submitted by the very same incompetent officer. The benefit of these illegalities and infirmities must necessarily go to the accused. In the result, these two appeals are allowed. Accordingly, the appellants in these two appeals are found not guilty of the offence under Section 55(i) of the Kerala Abkari Act, and accordingly, they are acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C. The conviction and the sentence against them in S.C.No.113 of 2011 of the court below will stand set aside. The bail bond, if any, executed by the appellants will stand discharged. Crl.Appeal Nos.1727 & 1875 of 2011 14 The amount, if any, deposited by the appellants in the court below as a condition for suspension of sentence will be released. Sd/- **P.UBAID,JUDGE** rkj //TRUE COPY// P.A. TO JUDGE