Vasudevan v. State of Kerala

Crl.A. No.1440 of 2006 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942** ## **CRL.A.No.1440 OF 2006** **AGAINST THE JUDGMENT IN SC 372/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)III, PATHANAMTHITTA** **AGAINST THE ORDER IN CP 40/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS , ADOOR** ## **APPELLANT:** **VASUDEVAN AGED 29 YEARS S/O.PRABHAKARAN, MAVARA PUTHANVEEDU,KURAMPALA VILLAGE,, ADOOR TALUK, PATHANAMTHITTA DISTRICT.** **BY ADV. SRI.C.B.SREEKUMAR** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR, ADOOR EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR** ## **SRI.K.B.UDAYAKUMAR,SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A. No.1440 of 2006 2 ## **P.V.KUNHIKRISHNAN, J. =================== Crl.A. No.1440 of 2006 =================== Dated this the 2[nd ] day of December, 2020** ## **J U D G M E N T** This appeal is filed against the judgment dated 28.06.2006 in S. C. No. 372/2005 on the file of Additional and District Sessions Judge, (Adhoc), Fast Track Court-III, Pathanamthitta. The above case is charge sheeted by the Excise Inspector, Adoor Range against the appellant and another alleging offence punishable under Section 55(a) of the Kerala Abkari Act. 2. The prosecution case is that, the accused was found transporting about 30 liters of rectified spirit in a can having capacity of about 35 liters in a bajaj auto bearing registration No. KL-3A9751 through the PWD road leading from the junction on the northern side of Perumpulikkal NSS High School Thekkekara Village Pandalam to Keerukuzhi. It is alleged that the Excise Crl.A. No.1440 of 2006 3 Preventive Officer found them and the accused were arrested from the spot. 3. To substantiate the case, the prosecution examined PW1 to PW5. Exts. P1 to P10 are the exhibits marked on the side of the prosecution. D1 and D2 are the exhibits marked on the side of the defence. MO1 is the material objects. 4. After going through the evidence and documents, the trial court found that, the 1[st] accused is guilty under Section 55(a) of the Abkari Act. The 2[nd] accused was acquitted. Aggrieved by the conviction and sentence, the 1[st] accused filed this appeal. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The learned counsel for the appellant submitted that, the prosecution is vitated in this case, because a Preventive Officer registered the case. The learned counsel submitted that, the Preventive Officer is not an authorized person to register a case as per the Abkari Act. The learned counsel submitted that, simply because he is in Crl.A. No.1440 of 2006 4 charge of Excise Inspector, he can not assume the role of Excise Inspector for registering the case, because only the Excise Inspector is the authorized person as per the Abkari Act. The Excise Inspector has no authority to delegate his power as per the statute to the Preventive Officer. Therefore, the entire prosecution is not sustainable for that simple reason itself. The learned counsel also submitted that, in Ext. P6 forwarding note there is no seal. The learned counsel submitted that, in such situation the accused is entitled to the benefit of doubt in the light of several judgments of this Court. 7. The point for consideration in this appeal is whether the accused committed the offence under Section 55(a) of the Abkari Act. 8. Admittedly, there is no seal in Ext. P6 forwarding note. The forwarding note is an important document as far as the abkari cases concerned. Unless there is seal in the forwarding note, it can not be concluded that, the prosecution proved that the seized articles reached in the hands of the analyst. It is the fundamental duty of the Crl.A. No.1440 of 2006 5 prosecution to prove all the links starting from seizure of the contraband articles till it reaches in the hands of the analyst. Forwarding note is one of the links to prove the prosecution case in abkari cases. 9. The importance of the seal in forwarding note is considered by this Court in _**Ravi. v. State – S.I. of Police, Meppadi [2018(5) KHC 352 and Smithesh v. State of Kerala [2019(2) KLT 974.**_ The relevant portion of the judgment in Smithesh’s case (supra) is extracted hereunder: “8. This Court has settled that the copy of the forwarding note produced in court by the Detecting officer or the Investigating Officer must be proved in evidence, and it must contain the specimen of the seal affixed on the sample. Ext.P8 forwarding note does not contain the specimen of the seal affixed on the sample. This means that there is nothing to identify the sample collected from the possession of the accused. It is not known from which plastic can, the four samples relating to the chemical report were collected. Thus, on all material aspects, the whole prosecution case is doubtful, and there is no clear and satisfactory material to prove the offence alleged.” 10. In the light of the above authoritative judgments, it is clear that, the lack of seal in the Crl.A. No.1440 of 2006 6 forwarding note is fatal to the prosecution. If there is no seal in the forwarding note, there is no guarantee that the seized articles are reached in the hands of the Analyst. Therefore, for this simple reason itself, the accused is entitled to the benefit of doubt. 11. Moreover, the Preventive Officer registered the case. According to him, he was in charge of Excise Inspector on that day. But when the Abkari Acts authorizes certain person to do certain activities, simply because the Preventive Officer is in charge of the Excise Inspector, he can not register a case. This point is considered by this Court in judgment dated 21.12.2015 in Crl.A No.300/2006. The relevant portion of the judgment is extracted hereunder; “9. After having heard learned counsel for the appellant and the learned Public Prosecutor and having perused the records and provisions of the Act, there seems to be some force in the submission of the learned counsel for the appellant. To understand the position as contended by the learned counsel for the appellant, reference to the provisions is required. First among them being the definition of 'Abkari Officer' as contained in Section 3(2) of the Abkari Act which reads as follows: “3(2) Abkari Officer:- “Abkari Officer” means the Commissioner of Excise or any officer or Crl.A. No.1440 of 2006 7 other person lawfully appointed or invested with powers under Sections 4 or 5.” Section 3(6) defines 'Abkari Inspector' as follows: “3(6) Abkari Inspector.- “Abkari Inspector” means an officer appointed under Section 4, clause (d).” Section 4 reads as follows: “4. The Government may, by notification in the Gazette:- (a) The Government may appoint an officer to control the administration of the Abkari Department:Appoint an officer, who shall be styled the commissioner of Excise and who shall, subject to the general control of the Government have Control of the administration of the Abkari Department and of the collection of the Abkari Revenue or of both; (b) May appoint any person other than the Commissioner to perform all or any of his duties:- Appoint any person other than the Commissioner of Excise to exercise all or any of the powers and to perform all or any of the duties of the Commissioner of Excise, subject to the control of the Government. (c) May withdraw Abkari powers from Commissioner or other officer appointed under clause (a) or clause (b):- Withdraw from the Commissioner or other officer appointed under clause (a) or clause (b) any or all of his powers in respect of the Abkari Revenue; (d) May appoint officer to take action under Sections 40 to 53:- Appoint officers to perform the acts and duties mentioned in Sections 40 to 53 inclusive of this Act; (e) And subordinate officers:- Appoint subordinate officers of such classes and with such designations, powers and duties under this Act as the Government may think fit. (f) May appoint any officer of Government or persons to act as above:- Order that all or Crl.A. No.1440 of 2006 8 any of the powers and duties assigned to any officer under clauses (d) and (e) of this section shall be exercised and performed by any Officer of Government or any person. (g) Delegate to any Abkari Officer all or any of their powers under this Act.” It may be noticed at once that Abkari Inspector means an officer appointed under Section 4 clause (d). It means those officers mentioned in Sections 40 to 53 inclusive of the Act. So that Abkari officers empowered to act under Sections 40 to 53 alone can qualify as Abkari Inspector. Section 5 reads as follows: “5. The Government may, from time to time, make rules:- (1) Prescribing the powers and duties under this Act to be exercised and performed by Abkari Officers of the several classes; and (2) regulating the delegation by the Government or by the Commissioner of Excise of any powers conferred by this Act or exercised in respect of Abkari Revenue under any law for the time being in force.” The notification issued in pursuance to the above provision, S.R.O. 234/1967 which was in force as on the date of incident in this case contained entry No. 12 which has already been quoted. One may look into entry No.8 in the above notification which reads as follows: 8. All officers of the Excise Department not below the rank Within the areas of Excise Inspectors to perform for which they the acts and duties mentioned are appointed. in Sections 40 to 53 inclusive of the Act. Therefore, the distinction between entries 8 and 12 is conspicuous. Entry No.8 in the notification says that all officers of the Excise Department not below the rank of Excise Inspectors can perform the acts and duties mentioned in Sections 40 to 53 of the Act. Entry No.12 Crl.A. No.1440 of 2006 9 says that Preventive Officer can only exercise powers for the purposes of Sections 31,32, 34, 35, 38, 39, 53 and 59. Going by the scheme of the Act, Preventive Officer can take such steps so as to prevent the commission of crime, even arrest the accused without warrant. Their power ceases when they produce the articles and the accused before the Excise Inspector and thereafter they cannot proceed to exercise powers under Sections 40 to 53 of the Act.” 12. The above judgment squarely cover the point raised by the appellant. Section 40 of the Abkari Act says about the procedure on arrest and seizure. A Preventive Officer is authorized as per the Abkari Act to arrest and seize contraband articles. But there is no authorization to the Preventive Officer to do the activities prescribed under Section 40 of the Abkari Act. The Preventive Officer could not assume charge simply because the excise officer is not present in the office. Without authorization he cannot register a case. If an unauthorized person register a case, it will go to the root of the case. Hence, I think the appellant in this case is entitled to the benefit of doubt. Therefore, this criminal appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 28.06.2006 in S. C. No. 372/2005 on Crl.A. No.1440 of 2006 10 the file of Additional and District Sessions Judge, (Adhoc), Fast Track Court-III, Pathanamthitta is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is canceled. **Sd/P.V.KUNHIKRISHNAN, JUDGE** LU