Suresh v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 CRL.A.No. 1966 of 2004() -----------------------SC.633/2000 OF THE COURT OF ADDL.SESSIONS JUDGE (ADHOC) II, KASARAGODE) .................... APPELLANT: 1ST ACCUSED IN CRIME NO.305/97 -------------------------------------------- SURESH, S/O.SUKUMARAN, KODAKKAD, KARIVELLUR, KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P.SRI P.A. SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A No.1966 of 2004 ----------------------------------------** Dated the 26th day of July, 2011 ## **JUDGMENT** The accused in S.C.No.633/2000 of the court of Additional Sessions Judge (Adhoc) II, Kasaragode is the appellant as he is aggrieved by the conviction and sentence imposed against him under section 55(a) of the Abkari Act. 2. The prosecution case is that, at about 7.40 p.m on 24.10-97, the accused was found transporting 4000 arrack packets along with another accused in a Maruthi van bearing registration No. BLB-3997 in Mangalpadi village and thereby the accused committed the offence punishable under section 55(a) of the Abkari Act. On the basis of the above allegation, crime No.305/97 was registered in the Kumbla police station for the offence under section 55(a) of the Abkari Act. On completing the investigation, the police preferred the report before the Judicial First Class Magistrate Court, Kasaragod wherein, on taking cognizance for the said offence, C.P.No. 97/2000 was instituted and finally by order dated 10.4.2000 thereon, the learned Magistrate committed the case to the Sessions Court where the case was received as S.C.No.633/2000. Though, Crl.A.No.1966/04 2 initially the case was made over to the Asst.Sessions Court, subsequently, the same was transferred to the trial court. On producing the accused, after hearing the defence as well as the prosecution, a formal charge was framed for the offence under section 55(a) of the Abkari Act which was read over and explained to the accused who in turn denied the charge and pleaded not guilty which resulted in the further trial during which PWs 1 to 5 were examined and Exts.P1 to P10 were marked from the side of the prosecution. The accused was also questioned under section 313 Cr.P.C. On conclusion of the trial, the learned Judge has found that the prosecution has succeeded in establishing the allegation against the accused and accordingly, found that he is guilty under Section 55(a) of the Abkari Act and thus, convicted him thereunder. On such conviction, the present appellant, who is the Ist accused who faced the trial, is sentenced to undergo rigorous imprisonment for three years and also sentenced him to pay a fine of Rs.one lakh, in default, he is directed to undergo rigorous imprisonment for another three months. Set off was allowed. It is the above conviction and sentence challenged in this appeal. Crl.A.No.1966/04 3 3. I have heard Sri. M.V.Amaresan, the learned counsel appearing for he appellant and also Sri P.A. Salim, the learned Public Prosecutor. 4. Counsel for the appellant submitted that in the present case, the alleged offence was detected by PW4, who at the relevant time was working as the Assistant Sub Inspector of Police, Badiyaduka police station, and he was was not an officer empowered to detect an offence under the provisions of the Abkari Act. Therefore, according to the learned counsel, the appellant is entitled to get an acquittal. It is also the submission of the learned counsel that besides the interested evidence of the official witnesses, there is no independent evidence to convict the accused and therefore, the trial court judgment is liable to be set aside. 5. Going by the evidence and judgment of the trial court, it can be seen that it was PW4, the then Asst. Sub Inspector of Police, Badiyaduka police station, is the officer who detected the offence. As per his evidence, he arrested the Ist accused , prepared the seizure mahazar and produced the accused and the thondi articles before the police station. Then PW1, the S.I. Crl.A.No.1966/04 4 of police registered Ext.P1 FIR. He had also prepared Ext.P2 scene mahazar. When PW4 was examined, he had deposed that on 24.7.97 while himself and party were on highway patrol duty near Mangalpady bridge, he stopped the maruthi van bearing registration No.BLB-3997 and on stopping the vehicle, two persons alighted from the vehicle and tried to escape and, according to him, he detained one of them and his name is Muhmed Abdullah and the person who escaped is one Suresh who was driving the vehicle. According to PW4, he inspected the vehicle and seized 4000 arrack packets and he seized the same as per Ext.P4 mahazar and samples were also drawn separately. Thereafter, he arrested accused and the samples of thondi articles etc. were taken to the Kumbla police station and he lodged report before the Station House Officer, Kumbla Police station. Ext.P5 is that report. Thereafter, the accused and the articles were produced before the court by PW1. He had also questioned the witnesses. Ext.P3 is the report for production of the arrack packets before the Assistant Excise Commissioner. Thereafter PW5 conducted investigation. Ext.P6 is the property list for production of sample bottles. Ext.P8 is Crl.A.No.1966/04 5 the forwarding note to send the sample for chemical analysis. As per Ext.P10 report filed by PW5, the correct name of A1 was incorporated. Ext.P9 is the chemical analysis report. Though PWs 2 and 3 are attestors to Exts.P2 and P4, they turned hostile. It is on the basis of the evidence , the trial court found that the appellant/accused is guilty under section 55(a) of the Abkari Act. 6. In the light of the above evidence and materials and in view of the arguments advanced by the learned Counsel for the appellant, the question to be considered is whether the trial court is justified in convicting and sentencing the appellant for the offence under section 55(a) of the Abkari Act. Having regard to the facts and circumstances involved in the case , especially, in the light of the settled legal position as per the decision of this court in **Sabu v. State of Kerala (** 2007 (4) KLT 169), I am of the view that this Court need not go into the merits of the case except the jurisdiction of PW4 who is the then Assistant Sub Inspector of Police, Badiyaduka Police Station, to detect, arrest and seizure of the contraband article as per the provisions of the Abkari Act. According to PW4, while himself and party were Crl.A.No.1966/04 6 on patrol duty along the Highway, himself stopped the vehicle and arrested the 2[nd] accused and on further inspection of the vehicle, detected 4000 packets each containing 100 ml of Karnataka made arrack. Consequently, he seized the material objects as per Ext.P4 seizure mahazar and thus arrested A2 and thereafter removed both the arrested accused as well as the articles produced before PW1, the Sub Inspector of Police, Badiyaduka police station. Thus, even according to the prosecution, the arrest and seizure made by the Asst. Sub Inspector of Police, who was examined as PW4. In the above decision, this Court has held: “10. The Government of Kerala had notified that all police officers above the rank of Sub Inspector of Police is empowered to discharge all the duties conferred on an Abkari Officer. In this context, learned counsel for the appellant brought to the notice of this Court G.O(P) No.69/967 TD dated 29.3.1996 (S.R.O.No.321/96). The said notification reads as follows: “In exercise of the powers conferred by S.4 of he Abkari Act, I of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective jurisdiction for the purposes of SS.31, 32. 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49,50, 51, 52, 53 and 59 of the Crl.A.No.1966/04 7 Act and to exercise all the powers and to discharge all he duties conferred and imposed on Abkari Officers, in the sections aforesaid.” (emphasis supplied) ## It is also held in paragraph 11 of the same judgment that: “In the light of the above provisions, this Court is of the view that the learned counsel appearing for the appellant was justified in taking the contention that PW3 was not empowered to detect or investigate the offence. If so, the evidence of PW3 corroborated by the evidence of Pws.4 and 5 would not prove any case against the appellant. PW3 had not stated before the Court below that he was charge of the police station and hence he was empowered to investigate the crime. Even if he was empowered as per the provisions of S.2(o) Cr.P.C, he cannot exercise the power conferred on an Abkari Officer. On this score also, the judgment of the Trial court has to be set aside”. (emphasis supplied) In the light of the above settled legal position, I am of the view that the trial Court is not correct and legal in endorsing in its finding that the appellant has committed the offence under section 55(a) of the Abkari Act, when the seizure and arrest made by Pw4, who is an incompetent officer, as per the notification issued by the Government. Therefore, the conviction recorded by the trial court is not sustainable either on facts or law and therefore, the same is liable to be set aside. Crl.A.No.1966/04 8 In the result, this appeal is allowed, setting aside the judgment dated 27.7.2004 in S.C.No.633 of 2000 on the file of the Additional Sessions Judge (Ad Hoc) II, Kasaragod acquitting the appellant/accused of all the charges levelled against him and the bail bond if any executed by him is cancelled and he is set at liberty. ## **V.K. MOHANAN, JUDGE.** kvm/- ## Crl.A.No.1966/04 9