V.A. Melli and others v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **TUESDAY, THE 3RD DAY OF APRIL 2018 / 13TH CHAITHRA, 1940** **Crl.Rev.Pet.No. 607 of 2003** **-----------------------------------------** **AGAINST THE JUDGMENT IN CRA 187/2001 of SESSIONS COURT, KOZHIKODE DATED 10-02-2003** **AGAINST THE ORDER/JUDGMENT IN SC 253/1999 OF III ADDL.ASST.SESSIONS COURT, KOZHIKODE, DATED 28-03-2001** **REVISION PETITIONERS/APPELLANTS/ACCUSED NOS.2,4 AND 5 :-** **----------------------------------------------------------** **1 V.A.MELLI, S/O ANANDAN, VALAKDAVIL HOUSE, ETTUPUNA, KARUVANNUR P.O.** **2 T.H.SREESHAN, S/O. HARI PRASAD, P.O. ENGADIYOOR.** **3 V.S.VALSAN, S/O. SHEKARAN, VATTATHKOTTILINGAL, P.O.KANDANASSERY.** **BY ADVS.SRI.P.VIJAYA BHANU SMT.REHNA.P.G.** **RESPONDENT/RESPONDENT/COMPLAINANT :-** **--------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SMT.SREEJA V., PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-04-2018, ALONG WITH CRL.R.P.NO.608/2003, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **rkj** ## **P.UBAID, J.** ================================ **Crl.R.P.Nos.607 & 608 of 2003** ================================ Dated this the 3[rd] day of April, 2018 ## **ORDER** The revision petitioners in Crl.R.P.No.607 of 2003 are the accused Nos.2, 4 and 5 in S.C.No.253 of 1999 of the Court of Session, Kozhikode, and the revision petitioner in Crl.R.P.No.608 of 2003 is the third accused therein. These revision petitioners and two others faced prosecution in the court below under Section 55(a) of the Kerala Abkari Act (“the Act”) on the allegation that at about 12.25 p.m. on 14.03.1998, they were found illicitly transporting huge quantity of Indian made Foreign Liquor contained in 4368 bottles of various capacities, and these bottles were packed in 242 cardboard cases. The offence was detected by the Kozhikode Town Circle Inspector. The police party led by him intercepted the vehicle No.KL 7J 5162 on the Cherootty road, Kozhikode on the basis of reliable information, and when the police party inspected the said lorry and it's platform, they found huge quantity of Indian Made Foreign Liquor contained in 242 cardboard cases. The driver, the cleaner, and five other persons found in the lorry were Crl.R.P.Nos.607 & 608 of 2003 2 arrested by the police party, and the contraband articles including the vehicle were seized as per a mahazar. The police registered the crime on the basis of the arrest and the seizure without any delay, and the accused and the properties were produced in Court. Though detection was made by a Circle Inspector, investigation was taken over by the Assistant Sub Inspector of the Kozhikode Town Police Station, and after investigation the Sub Inspector submitted final report also in Court. 2. All the accused appeared before the learned Third Additional Assistant Sessions Judge, Kozhikode, and pleaded not guilty to the charge framed against them under Section 55(a) of the Act. The prosecution examined six witnesses, and proved Exts.P1 to P14 documents in the trial court. The MO1 to MO6 properties were also identified during trial. When examined under Section 313 Cr.P.C., all the accused denied the incriminating circumstances. They did not adduce any evidence in defence. The accused examined one witness in defence, and proved Exts.D1 to D3 documents. On an appreciation of the evidence, the trial court found all the accused guilty. On conviction, they were sentenced to undergo imprisonment for two years each, and Crl.R.P.Nos.607 & 608 of 2003 3 to pay a fine of Rs.1 lakh each. 3. Aggrieved by the judgment of conviction dated 28.03.2001, the accused approached the Court of Session with different appeals. The accused Nos.2, 4 and 5 filed Crl.Appeal No.187/2001, the third accused filed Crl.Appeal No.198/2001, and the accused Nos.1 and 6 filed Crl.Appeal No.197/2001. In appeal, the learned Sessions Judge confirmed the conviction and sentence, and accordingly dismissed the appeals. Now the accused Nos.2 to 5 are before this Court in revision challenging the legality and propriety of the conviction and sentence. The revision brought by the accused Nos.1 and 6 as Crl.R.P.No.846/2003 was disposed of by this Court on 07.03.2018. They were acquitted in revision by this Court on the ground of serious legal infirmities vitiating the whole prosecution. 4. On hearing both sides, and on a perusal of the materials, I find that there are two serious infirmities in this case, the benefit of which must go to the accused. The offence was detected by a Circle Inspector Police. He was accompanied by a Sub Inspector of the Kozhikode Town Police Station, and some other Police Officers. PW1 is the Circle Inspector who detected the offence, and PW2 is the Crl.R.P.Nos.607 & 608 of 2003 4 Sub Inspector who accompanied him. PW3 and PW4 are the independent witnesses examined by the prosecution. They turned hostile during trial. PW5 is the Village Officer who prepared the scene plan, and PW6 is the Assistant Sub Inspector of Kozhikode Town Police Station who investigated the case. PW1 and PW2 have given evidence regarding the seizure of huge quantity of Indian Made Foreign Liquor contained in 4368 bottles, found in the lorry No.KL 7J 5162. On factual aspects, their evidence can be accepted. But the accused seek orders of acquittal on definite legal grounds. 5. This Court has consistently held in so many decisions that the various functions under the Kerala Abkari Act can be discharged only by the officers specifically authorised and appointed by the Government as Abkari Officers under Section 4 of the Act. In terms of Section 4 of the Act, the Government of Kerala issued a notification in 1967 as SRO 234/1967 by which the different powers under the Act were conferred on different categories of Excise Officials. Police Officers were not given powers under the said notification. In 1996, the Government issued another notification by which powers were conferred on Police Officers of and above the range of Sub Inspectors. Thus Crl.R.P.Nos.607 & 608 of 2003 5 only Police Officers of and above the rank of Sub Inspectors in charge of law and order, and working in the General Executive Branch of the police department were given powers to discharge functions under the Act. Assistant Sub Inspectors of Police were not given such powers as per the said notification. 6. In 2008, the legal issue came up before this Court, whether an Assistant Sub Inspector of Police can discharge any function under the Kerala Abkari Act. It is a case where an Assistant Sub Inspector submitted final report in Court in an Abkari matter. In the said case, **Subash v. State of Kerala [2008(2) KLT 1047]** , a Division Bench of this Court held that in the absence of specific notification and authorisation under Section 4 of the Kerala Abkari Act Assistant Sub Inspector of Police cannot discharge any function under the Act. In the said case, the Government contended that by an another notification the Government has authorised Assistant Sub Inspectors to discharge the functions of Sub Inspectors of Police. The Division Bench held that such a notification will hold good only for other purpose including administrative matters, and that for the discharge of functions under the Kerala Abkari Crl.R.P.Nos.607 & 608 of 2003 6 Act, there must be a specific notification and authorisation under Section 4 of the Act authorising Assistant Sub Inspectors also to discharge the functions. In this case, there is an illegality that investigation was conducted by an Assistant Sub Inspector. This is a case involving huge quantity of liquor, and so many witnesses. The detection was made by a Circle Inspector of Police, accompanied by a Sub Inspector, but the Police Officers thought it fit and proper to authorise an Assistant Sub Inspector to investigate the case. It is not known how such a subordinate officer happened to be authorised to conduct investigation in a case detected by a Circle Inspector, and witnessed by a Sub Inspector. Anyway, in view of the decision in Subash's case, the Court will have to find that the prosecution is vitiated by the legal infirmity that investigation was made by an incompetent Police Officer. On this ground itself, the accused are entitled for acquittal. 7. This Court has also settled that the copy of the forwarding note produced in Court must be proved in evidence, and it must contain the specimen of the seal affixed on the sample. Ext.P11 is the copy of the forwarding note. This does not contain the specimen of the seal affixed Crl.R.P.Nos.607 & 608 of 2003 7 on the sample. The detection mahazar also does not show what seal was actually affixed on the sample by the detecting officer. The certificate attached to the forwarding note contains a “Station” seal. The detecting officer is required to affix his personal seal on the sample. But there is no such seal in this case. On this ground also, the accused are entitled for acquittal. When the accused are entitled for acquittal on legal grounds, I feel it not necessary to go to the factual aspects. In the result, these revision petitions are allowed. The revision petitioners herein are not found guilty of the offence under Section 55(a) of the Kerala Abkari Act, and they are acquitted of the said offence in revision. Accordingly, the conviction and the sentence against them in S.C.No.253 of 1999 of the Court of Session, Kozhikode, confirmed in different appeals by the Court of Session, Kozhikode will stand set aside, and the revision petitioners will stand released from prosecution. rkj Sd/- **P.UBAID, JUDGE**