Suresh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 15TH DAY OF JANUARY 2016/25TH POUSHA, 1937** **CRL.A.No. 2040 of 2004 (C)** **---------------------------** **AGAINST THE JUDGMENT IN SC 353/2003 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC), FAST TRACK COURT - 1, PATHANAMTHITTA DATED 23-11-2004** **APPELLANT(S)/ACCUSED:** **----------------------** **SURESH, S/O. PODIYAN,** **VADAKKADATHU THAZHATHIL VEEDU, MANNADITHAZHAM KARA KADAMPANADU VILLAGE, ADOOR TALUK.** **BY ADVS.SRI.P.VIJAYA BHANU SMT.P.MAYA** ## **RESPONDENT(S)/COMPLAINANT:** **---------------------------** **STATE OF KERALA REPRESENTED BY** **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.2040 of 2004 ---------------------------------------------Dated this the 15[th] day of January, 2016 ## **JUDGMENT** This appeal is preferred against the conviction and sentence in S.C.No.353/2003 of the Additional District and Sessions Judge (Adhoc), Fast Track Court-I, Pathanamthitta u/s.8(1) & (2) of the Abkari Act. The charge is that on 5.3.2000 at 7 a.m., when the Preventive Officer, Adoor Exchange Range and his excise party were conducting patrol duty and proceeding through the road leading from Thazhathu junction to Pandimalapuram, the appellant was found carrying a kannas infront of Uralithara Kalari of Mannadiathazhathu kara. They intercepted him and inspected the kannas, in which they found five litres of Crl.. Appeal No.2040/2004 2 arrack. The appellant was arrested and the contraband articles were seized, reaching at the Excise Office registered a crime and occurrence report. After completing investigation, Excise Inspector, Adoor laid charge before Judicial First Class Magistrate Court, Adoor, from there the case was committed to Sessions Court, Pathanamthitta. 2. During trial, the prosecution examined six witnesses and marked Exts.P1 to P10 and admitted Mo1 in evidence. The appellant marked Exts.D1 to D3 during cross examination of the witnesses. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. The learned Additional Sessions Judge-I, Pathanamthitta convicted the appellant u/s.8(1) and (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and fine of 1₹ Crl.. Appeal No.2040/2004 3 lakh with default sentence of two years. Being aggrieved by that, he preferred this appeal. 3. The learned counsel for the appellant contended that the investigation was conducted by the Asst. Excise Inspector, who is not an empowered officer as per the Act. Moreover, there is delay of five days in producing the sample before chemical examiners lab. The prejudice caused to the appellant was not considered by the trial Court. 4. The learned Public Prosecutor strongly opposed the above argument and contended that no prejudice has been caused to the appellant in forwarding the articles to the chemical examiner's lab. He admitted that the Asst. Excise Inspector was not an empowered officer at the time of the offence. Subsequently, he was notified as an empowered officer. Crl.. Appeal No.2040/2004 4 5. Abkari Act specifically mentioned that the Abkari Officers can exercise their power u/s.4 and 5 of the Abkari Act only by a notification in the Gazette to perform the acts and duties mentioned therein. Therefore, in exercise of power conferred u/s.4 of the Abkari Act, the Asst. Excise Inspector was not an empowered officer. As per SRO No.234/1967, the officers and their powers and duties were specifically mentioned by the Government. The post of Asst. Excise Inspector was not notified in the above Government Order and therefore, his power to investigate the case was not mentioned in the above notification. The post of Asst. Excise Inspector was created during the year 1985 and with effect from 12.10.1988. The Asst. Excise Inspectors are officers above the rank of Preventive Officer. The above rank is not a criteria for exercising the power Crl.. Appeal No.2040/2004 5 ## conferred u/s.4 of the Abkari Act. ## 6. This Court in **Subrahmaniyan** v. **State of Kerala** ## [2012 (2) KLT 470] held as follows: “12.I am unable to accept the above contention. In view of S.3(2) and S.3(6), there must be officers termed as "Abkari Officers" and "Abkari Inspectors" and especially, in view of S.4(d), officers shall be appointed to perform the acts and duties mentioned in S.40 to 53 inclusive of the Abkari Act. S.70 specifically says 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". (emphasis supplied). 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 S.40 to 53. 13. On a reading of S.50, it is crystal cleat 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. Going by various provisions of the Act, it can be seen that vide powers are given to "Abkari Officers" and "Abkari Inspectors". Besides that, S.50 is more particular that, only "report of Abkari Officer" gives jurisdiction to a competent Magistrate and only on such report, the Magistrate can take cognizance. In the present case, PW 1 who was working as an Assistant Excise Inspector was not Crl.. Appeal No.2040/2004 6 given powers under the above provisions to effect seizure and investigation. He was also not competent due to absence of conferment of powers under S.50, to file "Report" or complaint. A trial conducted based upon a report of an incompetent officer will render as "non est." A Division Bench of this Court in the decision in Varkey v. State of Kerala, 1993 KHC 14 : 1993 (1) KLT 72 : 1993 (1) KLJ 56 : ILR 1993 (2) Ker. 795 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." A Full Bench of this Court, as per its decision in Abdul Rehman v. State of Kerala, 1995 KHC 211 : 1995 (1) KLT 234 (FB) : 1995 (1) KLJ 158 : ILR 1995 (1) Ker. 653, has affirmed the decision of this Court in Varkey's case, 1993 KHC 14 : 1993 (1) KLT 72 : 1993 (1) KLJ 56 : ILR 1993 (2) Ker. 795, (cited supra). In another Division Bench decision in Prabhakaran v. Excise Circle Inspector, 1992 KHC 460 : 1992 (2) KLT 860 : 1992 (2) KLJ 880 : ILR 1993 (1) Ker. 480. it is held: "Learned Public Prosecutor informed us, after ascertaining the position from the Government that no officer has been authorised by the State Government as per the aforesaid clause(d). If so, the respondent has no authority to file a complaint for the offence under the NDPS Act. The corollary is that the Court of Sessions or Special Court has Crl.. Appeal No.2040/2004 7 no jurisdiction to take cognizance of the offence under the NDPS Act on such complaint. The charge framed against the petitioner is hence without jurisdiction." In the present case, the above provisions, and other materials referred to above would show that PW 1 who was working as "Assistant Excise Inspector" was not a competent and authorised officer as contemplated by the provisions of the Abkari Act, especially, S.4(d) and S.70 of the Act and therefore, the seizure and arrest made by PW 1 was without authorisation and jurisdiction. ## 7. This Court in another decision in **Sasidharan** v. ## **State of Kerala** [2012 (2) KLT 392] held as follows: “But it is argued by the learned counsel for the appellant that as per section 70 of the Act, all notification and orders conferring powers, imposing duties and making appointments under the Act may respectively refer to the persons concerned specially by name or in virtue of their office or to classes of officials generally by the official titles. It is argued since as per the notification in SRO 234/1967 it was specifically mentioned that the acts and duties mentioned in sections 40 to 53 of the Act are to be performed by the officer not below the rank of Excise Inspector and since PW2 was only an Assistant Excise Inspector, the arrest of the accused, the seizure of the articles and sampling of the articles done by him were without jurisdiction. Since the illegality annexed to the main parts i.e., the arrest, seizure and sampling, that will go to the root of the matter and hence the cognizance taken and the trial conducted based on such a report are vitiated. Though as per SRO 234/1967, Preventive Officers were Crl.. Appeal No.2040/2004 8 invested with the powers to be exercised under sections 31, 32, 35, 38, 39, 53 and 59, since the preventive officers are officers specifically named as per the aforesaid notification, the arrest of the accused and seizure of the articles and the production of the accused and property before the Magistrate by the Assistant Excise Inspector who's not a named or notified officer, are without jurisdiction as has been held by this Court in Subrahmaniyan Vs. State of Kerala 2010(2) KLT 470. 8. Therefore, Asst. Excise Inspector is not an empowered officer as per the Abkari Act. The occurrence was proved through PW1, preventive officer, Excise Range, Adoor. His evidence shows that on 5.3.2000 at 7 a.m., he arrived at the place of occurrence and the appellant was found carrying MO1 with five litres of arrack in it. After identifying it as arrack, he took 180 ml as sample and sealed at the place of occurrence. The appellant was arrested. He prepared Ext.P1 mahazar. Ext.P2 is the arrest memo, reaching at the Excise Office, he entrusted the matter to PW5, the Asst. Excise Crl.. Appeal No.2040/2004 9 Inspector, Adoor. PW2 , the Excise Guard supported the above evidence of PW1. He also identified the signature of PW1 in Ext.P1. 9 PW5, the Asst. Excise Inspector admitted that PW1 produced the appellant and Exts.P1 and P2 before the Excise Range Office, Adoor. He also produced Ext.P5 notice issued by PW1. On the basis of Exts.P1, P2 and P5 and MO1, he registered crime 39/2000. Ext.P6 is the crime and occurrence report. The accused was produced before Court as per Ext.P7 remand application. The property list was forwarded to the Court. Ext.P8 is the property list. The seized articles were produced before Court for sending it to the chemical examiner's lab. Ext.P9 is the copy of requisition note for the examination of sample. He signed in Ext.P6 to P9. After chemical examination, he received Ext.P10 report, in which it is Crl.. Appeal No.2040/2004 10 proved that 31.01% volume of ethyl alcohol detected in the sample. PW6 conducted further investigation. He questioned the witnesses. PW3 and PW4 gave Ext.P3 and P4 statements. PW3 and PW4, who were independent witnesses, did not support the prosecution case. A close analysis of the above evidence, it is clear that the major part of the investigation was conducted by a nonempowered officer. All the proceedings were taken by PW5, Asst. Excise Inspector, who was not a competent officer as contemplated under the Abkari Act. The seizure made by PW1 is valid, but subsequently entrusted the matter to PW5, which is an illegality. The investigation conducted by PW5 is improper and irregular and a conviction is not maintainable on the basis of those articles. Therefore, the appellant is entitled to get the benefit of such illegality. Crl.. Appeal No.2040/2004 11 In the result, the conviction and sentence passed by the trial Court u/s.8(1) and (2) of the Abkari Act are set aside and the appellant is acquitted and set at liberty. Crl.Appeal is allowed. **P.D. RAJAN, JUDGE.** acd Crl.. Appeal No.2040/2004 12