V. Subramanyan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943 CRL.A NO. 1536 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 200/2005 OF ADDITIONAL SESSIONS COURT ``` ``` (ADHOC) II, KALPETTA ``` ## **`APPELLANT/ACCUSED:`** ``` V.SUBRAMANYAN AGED 41 YEARS, KUDIYIL HOUSE, KARAPUZHA, VAZHAVATTA,, MUTTIL SOUTH VILLAGE, VYTHIRI TALUK, WAYANAD. ``` ``` BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTING EXCISE INSPECTOR, KALPETTA EXCISE RANGE,, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.] ``` ``` BY ADV. ``` ``` ADV. SUDHEER GOPALAKRISHANAN – PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1536 OF 2007 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant is the accused in S.C.No.200 of 2005 on the file of the Additional Sessions Court (Adhoc) II, Kalpetta. The aforesaid case is arising from Crime No.18/2004 of Kalpetta Excise Range Office. 2. The prosecution case is that, on 25.04.2004, he was found transporting 10 litres of spirit at Vazhavatta, and the offence above was detected by the preventive officer of Kalpetta Excise Range. Based on the same, he was arrested, and articles were seized. Upon completing the investigation, the final report was submitted before the Chief Judicial Magistrate Court, Kalpetta. After completing the legal formalities, the matter was committed to the Sessions Court, which in turn made over to the Additional Sessions Court (Adhoc) -II, Kalpetta. The case was tried as SC.No.200 of 2005. 3. In support of the prosecution case, PW1 to PW5 were examined, and Exts.P1 to P7 were marked. MO1 and MO2 were identified. After the closure of prosecuting evidence, the appellant ``` CRL.A NO. 1536 OF 2007 ``` ``` 3 ``` was examined under Section 313 Cr. P.C and incriminating materials brought out during the trial were put to him. He denied the same and pleaded innocence. No defence evidence was adduced. After examining the materials, the learned Sessions Judge concluded that the appellant is guilty of the offence. Accordingly, he was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- for the offence punishable under Section 55 (a) of the Kerala Abkari Act. It was further ordered that in case of default in depositing the fine amount the appellant shall undergo rigorous imprisonment for a further period of three months. This order of conviction and sentence is under challenge in this appeal. 4. Heard Smt.C.M. Charisma, learned counsel appearing for the appellant and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor appearing for the State. 5. The learned counsel for the appellant mainly raises two contentions. The first and foremost contention is that the statutory requirement contemplated under Section 38 of the Abkari Act was not there. It is pointed out that PW1, who was the detecting officer, ``` CRL.A NO. 1536 OF 2007 ``` ``` 4 ``` is a Preventive officer. Even though he was an abkari officer as per Section 38, PW1 ought to have given information to his immediate official superior or to an Abkari Inspector immediately upon detection of the crime. In this case, no such exercise has been done and therefore, there is a violation of mandatory statutory procedure, contends the learned counsel for the appellant. The learned counsel also submits that the prosecution failed in establishing the tamperproof condition of the articles seized from the date of its seizure and until the same was subjected to chemical analysis. To substantiate the said contention, it is pointed out that Ext.P2 seizure mahazar does not contain the impression of the specimen seal affixed on the samples or its description thereof. The absence of the same is a crucial lacuna in the prosecution case. Based on the same, the learned counsel seeks interference in the finding of conviction entered by the Sessions Court. 6. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. It is pointed out that the evidence already adduced in the form of official witnesses PWs 1 and 2, who ``` CRL.A NO. 1536 OF 2007 ``` ``` 5 ``` are the Preventive Officer and Excise Guard and were parties to the team which detected the offence and the evidence of PW5 investigating officer coupled with the contemporaneous documents such as arrest memo, mahazar, chemical analysis report etc. would support the prosecution case. In such circumstances, no interference in the finding of the Sessions Court is warranted, and hence he seeks for dismissal of the appeal. 7. The first contention put forward by the learned counsel for the appellant is about non-compliance with Section 38 of the Abkari Act, which reads as follows: _“38. Offences to be reported, etc. - Every [Officer of Government], other than an Abkari Officer, shall be bound to give immediate information to an Abkari Officer,_ _and every Abkari Officer shall be bound to give immediate information either to his immediate official superior or to an Abkari Inspector,_ _of all breaches of any of the provisions of this Act which may come to his knowledge; and all such officers shall be bound to take all reasonable measures in their power to prevent the commission of any such breaches which they may know or have reason to believe are about or likely to be committed.”_ The aforesaid provision indeed mandates that when breaches of any of the provisions of the Act come to the notice of the Abkari officer, he shall be bound to give immediate information to the immediate ``` CRL.A NO. 1536 OF 2007 ``` ``` 6 ``` official superior or to an Abkari Inspector. In this case, going by the definition of Abkari officer as defined under Section 2(2) of the Abkari Act coupled with the notification bearing SRO No.234/1967 issued in this regard, the Preventive Officer is an Abkari officer. Therefore, he was under an obligation to inform the matter to his immediate official superior or an Abkari Inspector. In this case, the offence was detected by PW1/Preventive Officer on 25.04.2004. PW5 is the Abkari Inspector who conducted the investigation. In his evidence, he stated that he had taken over the investigation only on 06.12.2004, which is after about eight months of detection of the offence. The learned counsel also places reliance upon the judgment rendered by this Court in **Suresh Babu v. State of Kerala [2017 (4) KHC 693],** wherein this aspect is specifically considered. The relevant observations made by this Court in the said judgment are extracted as hereunder: _“Thus, it can be seen that when a crime was registered basing on a breach of the provisions of Abkari Act, every Abkari Officer shall be bound to give immediate information either to his immediate official superior or to an Abkari Inspector. Admittedly on the date of arrest there was no Excise Inspector at the Excise Range Office. When there was no Excise Inspector present, the corollary is that there was no Abkari Inspector. This aspect is dealt on the later part of this_ ``` CRL.A NO. 1536 OF 2007 ``` ``` 7 ``` _judgment. It is categorically stated that he was on leave and the Excise Inspector examined before the Court deposed that he took over the investigation only on 28/11/2000. There is a gap of about 4 months. If there was any information given as required under S.38 of the Abkari Act, it should be proved by positive evidence. When there was no material produced by the prosecution to show that there was compliance on this aspect as required under S.38 of the Abkari Act, it is fatal to the prosecution especially when PW5 who was the Investigating Officer got a case that accused was arrested from a pathway whereas the case of PWs 1 and 2 was that he was arrested from a road area. This aspect was considered by the Trial Court and observed that as the trial took place after a long period, it may be a mere mistake. But when the detection of a crime was not reported to the officer as contemplated under S.38 of the Act, it will be fatal to the prosecution. It is to be remembered that in this case the detection was not by an Excise Inspector but by an abkari officer. An Abkari officer inferior to Abkari Inspector is bound to act in accordance with S.38 of Abkari Act. At this juncture, it is also relevant to note the definition of an Abkari Inspector. As per S.3(6) of the Abkari Act. An Abkari Inspector is defined as under:_ _"Abkari Inspector" means an officer appointed under S.4, Cl.(d). Whereas, as per S.3(2) of the Abkari Act, an Abkari Officer is defined as follows:_ _Abkari Officer.-- "Abkari Officer" means the Commissioner of Excise, or any officer or other person lawfully appointed or invested with powers under S. 4 or 5._ _As per S.4, CI.(d) he is an officer to take action under S.40 to 53 of the Abkari Act. As per the notification of Government of Kerala, SRO 234/1967, the powers under S.40 to 52 was not vested with a Preventive Officer. Those powers are only vested with officers of the Excise Department not below the rank of Excise Inspectors. Thus what comes out is that detecting officer (PW1) being only an Abkari Officer and not being an Abkari Inspector, he was bound to inform the Excise Inspector who will be also an Abkari Inspector. If the Abkari Inspector was not available in the office, PW1 was bound to inform his available superior officer. It can be seen that S.38 of the Abkari Act is incorporated in the Statute as a precaution against misuse of provisions._ _6. Thus, the requirement under S.38 of the Abkari Act that on detection of every breach of the provisions of Abkari Act, an Abkari Officer shall give immediate information either to his immediate official superior or to an Abkari Inspector is mandatory in nature. In this case, there was violation of this mandatory requirement, or at least there was no evidence to show that the said requirement was_ ``` CRL.A NO. 1536 OF 2007 ``` ``` 8 ``` _fulfilled.”_ In the light of the aforesaid observations and the principles laid down therein, compliance with the procedure contemplated under section 38 is mandatory. In this case, the materials clearly reveal noncompliance of the same, and therefore, it is fatal to the prosecution case. 8. Apart from the above, another illegality noticed is the lack of specimen impression of the seal or the description thereof, in Ext.P2 mahazar. In **Moothedath Sivadasan v. State of Kerala [2021 (2) KLJ 80],** it was held by this Court that the lack of impression of specimen seal on mahazar or the description thereof is fatal to the prosecution case. In **Vijay Pandey v. State of Uttar Pradesh [AIR 2019 SC 3569],** it was held that mere production of a chemical analysis report is not sufficient to establish that the accused was in possession of the contraband article. The prosecution has to relate the articles seized from the accused with the sample subjected to chemical analysis. To establish the said aspect, every link right from the seizure of the contraband article to obtaining of the chemical analysis report are to be proved. For the said purpose, the prosecution must ``` CRL.A NO. 1536 OF 2007 ``` ``` 9 ``` establish all the sequence of events relating to the same by adducing evidence. The absence of a seal in Ext.P2 mahazar is a crucial missing link to establish the chain of circumstances and therefore, it is vital. In such circumstances, this is yet another aspect that makes the appellant entitled to the benefit of doubt. 9. Thus, when I consider all the above aspects, the irresistible conclusion possible is that the prosecution failed to establish the accused's guilt with reasonable proof. Therefore, the finding of conviction entered by the Sessions Court warrants interference. In the result, this appeal is allowed. The judgment dated 23.07.2007 in S.C. No.200/2005 passed by the Additional Session Court (Adhoc) II, Kalpetta, is hereby set aside. The appellant is found not guilty and acquitted of all the charges. ## **`Sd/-`** ``` ZIYAD RAHMAN A.A. JUDGE ``` SCS