VESAN @ UNNIKRISHNAN S/O ACHUTHAN v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942** ## **CRL.A.No.1926 OF 2006(C)** **AGAINST THE ORDER/JUDGMENT IN SC 302/2005 DATED 31-08-2006 OF ADDITIONAL SESSIONS JUDGE FAST TRACK COURT NO.III,PALAKKAD** ## **APPELLANT:** **VESAN @ UNNIKRISHNAN S/O.ACHUTHAN,PARAPPALLIYALIL HOUSE, KANAYAM DESOM,, SHORNUR, OTTAPPALAM, PALAKKAD.** **BY ADV. SRI.VINOD KUMAR.C** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SMT.S.L.SYLAJA, PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.1926 OF 2006(C) 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## CRL.A.No.1926 OF 2006 ------------------------------- ## **JUDGMENT** Dated this the 23rd day of February 2021 Appellant is the accused in S.C.No.302/2005, on the file of the Additional Sessions Judge Fast Track Court No.III, Palakkad. The above case is charge sheeted by the Excise Inspector, Excise Range Office, Pattambi against the appellant alleging the offence punishable under Section 55(a) and 8(1) and (2)of the Abkari Act. 2. The prosecution case is that on 26-7-2002, the Preventive Officer, Excise Range Office, pattambi, together with excise party was on patrol duty and at 11.30am and when they reached near the house of Parapalliyalil Sivanandan at Kanayam Desom in Shornur Village, situated at the side of the Chuvanna gate-Kumbharakkatty road, they found the accused walking through the side of the said road holding a plastic can of capacity of 5 litres. The same was CRL.A.No.1926 OF 2006(C) 3 inspected in the presence of the witness and found about 5 litres of illicit arrack. The Preventive Officer took some sample of arrack from the can in a bottle. The sample bottle and the can containing the remaining arrack were sealed in the presence of the witness and affixed label in them and the seizure mahazar was also prepared in the presences of the witness. The seized contraband articles and the arrested accused were produced before the Excise Range Office. The case was registered by the Preventive Officer who was in charge of the Excise Inspector. 3. To substantiate the case, the prosecution examined PW1 to PW4. Exts.P1 to P7 were also marked on the side of the prosecution. 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. The accused is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/-. In default of payment of CRL.A.No.1926 OF 2006(C) 4 fine, the accused is directed to undergo rigorous imprisonment for a further period of six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed by the accused in this case. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor. 6. The counsel for the appellant submitted that, in this case, forwarding note is not produced or marked by the prosecution and for that simple reason the accused is entitled to the benefit of doubt. The counsel also submitted that the Preventive Officer registered the case as evident from Ext.P7. Therefore, the entire prosecution is vitiated because the Preventive Officer is not an authorised person to register the case as per the Abkari Act. 7. The learned Public Prosecutor submitted that, based on the oral and documentary evidence, the offence against the accused is proved, and there is nothing to interfere with the conviction and sentence on technical grounds. 8. The point to be decided is whether the CRL.A.No.1926 OF 2006(C) 5 accused committed the offence under Section 8(1) and ## (2) of the Abkari Act. 9. Admittedly, the forwarding note is not produced and marked by the prosecution in this case. The relevancy of forwarding note is considered by this court in several judgments. It is the duty of the prosecution to prove all the links starting from seizure of the contraband till reaches in the hands of the accused. Admittedly, the forwarding note is not marked in this case. 10. In abkari cases, forwarding note is important because the specimen seal used by the detecting officer will find a place in it. It is the fundamental duty of the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the analyst. Forwarding note is one of the links to prove the prosecution case in abkari cases. 11. This Court in several decisions considered the relevancy of the forwarding note. Some of the decisions are Gireesh @ Manoj v. State of Kerala (2019(4) KLT 79), Vijayan @ Pattalam Vijayan and CRL.A.No.1926 OF 2006(C) 6 another v. State of Kerala (2018 (2) KHC 814) and Prakasan and another v. State of Kerala (2016 KHC 96). The relevant portion of the judgment in Gireesh's case (supra) extracted hereunder: - _“14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by PW5 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See Prakasan v. State of Kerala (2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16)).”_ 12. Similarly, the Preventive Officer registered Ext.P7 crime and occurrence report. The Preventive Officer is not an authorised person to register the crime as per the Abkari Act. 13. Admittedly, the Preventive Officer registered the case. According to him, he was in charge of Excise CRL.A.No.1926 OF 2006(C) 7 Inspector on that day. But when the Abkari Act 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.Appeal.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 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 CRL.A.No.1926 OF 2006(C) 8 (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 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. CRL.A.No.1926 OF 2006(C) 9 - (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 CRL.A.No.1926 OF 2006(C) 10 the rank of Excise Inspectors can perform the acts and duties mentioned in Sections 40 to 53 of the Act. Entry No.12 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.” 14. 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. 15. In the light of the above discussions, I think the appellant is entitled to the benefit of doubt. CRL.A.No.1926 OF 2006(C) 11 Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant/accused as per the judgment dated 31.8.2006 in S.C.No.302/2005, on the file of the Additional Sessions Judge Fast Track Court No.III, Palakkad is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is cancelled. **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** ska