Ummathanathu Sunil v. State - Excise Inspector, Sreekandapuram Range

**CRL.A.No.612 OF 2006** 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 14TH DAY OF DECEMBER 2020 / 23RD AGRAHAYANA, 1942** **CRL.A.No.612 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 503/2005 DATED 10-03-2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THALASSERY** ## **APPELLANT/S:** **UMMATHANATHU SUNIL, S/O. JOSEPH, VAYATHUR AMSOM, VATTIYAMTHODE DESOM.** **BY ADV. SRI.GRASHIOUS KURIAKOSE** **RESPONDENT/S:** **STATE -EXCISE INSPECTOR, SREEKANDAPURAM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SRI.CHELSON CHENBARATHY FOR APPELLANT, R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-122020, THE COURT ON 14-12-2020 DELIVERED THE FOLLOWING:** **CRL.A.No.612 OF 2006** 2 ## **JUDGMENT** **Dated this the 14th day of December 2020** Appellant is the accused in S.C. No. 503/2005 on the file of the Additional Sessions Judge (Adhoc) II, Thalassery. The above case is charge sheeted by the Excise Inspector, Sreekandapuram Range, against the accused alleging the offence punishable under Section 8(2) of the Abkari Act. 2. The prosecution case is that on 20-01-2000, at about 4.30 p.m. the Excise Inspector, Sreekandapuram, and party found the accused transporting 115 packets(100ml. each) containing Karnataka made arrack and hence it is alleged that the accused committed the offence punishable under Section 8(2) of the Abkari Act. 3. To substantiate the case, the prosecution examined PW1 to PW5. Ext.P1 to P6 are the documents marked on the side of the prosecution. MO1 to MO3 are the material objects. **CRL.A.No.612 OF 2006** 3 4. After going through the evidence and documents, the trial Court found that, the accused committed the offence punishable under Section 8(2) of the Abkari Act. He is sentence to undergo rigorous imprisonment one year 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 a period of three months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard the learned counsel for the appellant and learned Public Prosecutor. 6. The learned counsel for the appellant submitted that, the investigation in this case is conducted by an unauthorised officer, and therefore the entire prosecution is vitiated on that ground itself. The learned counsel also submitted that, the property list is not marked in this case. On that ground also the accused in this case is entitled the benefit of doubt. 7. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the offence against the appellant and there is nothing to interfere with the conviction and sentence imposed by the trial Court. The learned Public **CRL.A.No.612 OF 2006** 4 Prosecutor submitted that, this Court may not interfere with the conviction and sentence on technical grounds. 8. Admittedly, the property list is not marked in this case. The relevancy of property list in abkari cases is considered by this Court in several judgments. Once a contraband article is seized from the possession of the accused, it should be produced before the Court concerned forthwith. When the property is produced before the Court, it will be produced along with a property list. The trial Court and the appellate Court can verify the date on which the property reached the Court only by going through the endorsement in the property list. Simply because the witnesses deposed that the property reached the Court on such and such date, it cannot be believed safely. When there are documents to prove that the property is reached the Court on a particular date and the same is not marked by the prosecution, according to me an adverse inference can be taken under Section 114(g) of the Evidence Act, against the prosecution. Simply because the witnesses deposed that, the property reached the Court on such and such date, the same is not acceptable unless the property list is produced and marked in cases like this. Admittedly the **CRL.A.No.612 OF 2006** 5 property list is not marked in this case. Therefore, this Court is handicapped in ascertaining the date on which the property is produced before the Court. It is now settled by a catena of decision of this Court, that the property should be produced before the Court forthwith and if the same is not produced, that is fatal to the prosecution. To find out when exactly the property reached the Court, the property list is relevant. If property list is not produced and marked by the prosecution, that itself is a ground for acquittal. 9. Moreover, admittedly the seizure was with in the jurisdiction of Sreekandapuram Excise Range. PW4, the Excise Inspector Alakode range, conducted investigation in this case. He has no jurisdiction to investigate a case because as per the Abkari Act, only the Jurisdictional Excise Inspector is having power to investigate under the Abkari Act. 10. This point was considered by this Court in **Balachandran v. State of Kerala [2020(3) KHC 697]** . The relevant paragraphs of the above judgment is extracted hereunder: _**15. Therefore, it is clear that all Excise**_ **CRL.A.No.612 OF 2006** 6 _**Department officers not below the rank of Excise Inspector can file a final report under Section 50 only if the detection is within the area for which they are appointed. Clause (8) of SRO No.234/67 is clear about that. Ofcourse, in the proviso to SRO No.234/67, it is stated that, with reference to Sections 31 and 34 of the Act, there shall be no limit of jurisdiction within the Kerala State for the Abkari and other Department Officers named therein; but all persons arrested and all seizures made thereunder shall, without delay, be made over to the Excise Officer possessing local jurisdiction.**_ _**16. Admittedly, in this case, final report is filed by PW5 who is the Excise Circle Inspector of Aluva Excise Range. Admittedly, arrest and seizure of the contraband article in this case happened within the jurisdiction of Excise Range, North paravur. In such a situation, PW5 has no authority or authorization to submit the final report in this case. Only charge witness No.11, the Excise Inspector of North Paravur Excise Range or any competent officers of Excise Range, North Paravur can conduct investigation and submit final report in this case. In this case, an incompetent officer filed the final report under Section 50 of the Abkari Act. It is a fundamental defect that will go to the root of the case. The Magistrate cannot take cognizance based on a final report submitted by an incompetent officer.**_ _**17. This court, in Suresh v. State of**_ **CRL.A.No.612 OF 2006** 7 _**Kerala [2017(2) KHC 891] considered this point. The relevant portion of the above judgment is extracted hereunder:**_ _**15. S.31 of the Act deals with search in houses and other buildings, and S.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 made under S.31 or S.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 S.31 or S.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 provision is never meant to give authority to officers not covered by the Government Order. Only those categories of officers specifically empowered and**_ **CRL.A.No.612 OF 2006** 8 _**covered by the Government notification issued under S.4 of the Act can claim the benefit of the proviso, and only those categories can detect offences under S.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, cannot be extended to other categories who are not authorized by the Government under S.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.”**_ 11. In such circumstances the appellant in this case is entitled the benefit of doubt. Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 10-03-2006 in S.C. No. 503/2005 on the file of the Additional **CRL.A.No.612 OF 2006** 9 Sessions Judge (Adhoc) II, Thalassery, is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is cancelled.s ## **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** **sa**