VIDHYADHARAN PUTHENPURAYIL VEEDU v. STATE OF KERALA

**CRL.A NO. 671 OF 2008** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 8[TH] DAY OF AUGUST 2022 / 17TH SRAVANA, 1944 CRL.A NO. 671 OF 2008** **AGAINST THE ORDER/JUDGMENTSC 436/2002 OF ADDITIONAL DISTRICT COURT (ADHOC), KOLLAM CP 73/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I,** ## **KARUNAGAPPALLY** ## **APPELLANT/S:** VIDHYADHARAN PUTHENPURAYIL VEEDU,, VENGARA MURI, KALLELIBHAGAM VILLAGE,, KARUNAGAPPALLY. BY ADVS. SRI. K.SIJU SRI.PRATHEESH.P ## **RESPONDENT/S:** STATE OF KERALA EXCISE INSPECTOR, KARUNAGAPPALLY, THROUGH, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ## **OTHER PRESENT:** SMT.MAYA.M.N, PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **CRL.A NO. 671 OF 2008** **2** ## **P.V.KUNHIKRISHNAN, J** **-------------------------------------------Crl.Appeal No.671 of 2008 -------------------------------------Dated this the 8[th] day of August, 2022** ## **JUDGMENT** The above Criminal Appeal is filed against the conviction and sentence imposed on the appellant as per judgment dated 27.3.2008 in SC No. 436/2002 on the file of the Addl.District and Sessions Judge (Adhoc-I), Kollam. The appellant is chargesheeted alleging offences punishable under Secs.8(1) and (2) of the Abkari Act. The prosecution case is that on 7.12.1999 at about 12.10 pm, the accused was found in possession of 750 ml of arrack in a paper packet. Hence, it is alleged that the accused committed the offences. 2. To substantiate the case, PW1 to PW6 were examined. Exts.P1 to P8 are the exhibits marked on the side of the **CRL.A NO. 671 OF 2008** **3** prosecution. MO1 is the material object. After going through the evidence and the documents, the trial court found that the accused committed the offence under Sec. 8(1) of the Abkari Act. The accused is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused is directed to undergo simple imprisonment for a period of 3 months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 3. Heard the learned counsel for the appellant and the learned Public Prosecutor. 4. The counsel for the appellant submitted that the search, seizure and arrest was conducted by an Asst. Excise Inspector who is not authorised as per the Abkari Act. The counsel submitted that the same will vitiate the entire trial. The Public Prosecutor on the other hand submitted that there is no prejudice caused to the accused even if the Asst.Excise Inspector conducted the search, seizure and arrest. The point to **CRL.A NO. 671 OF 2008** **4** be decided in this case is whether the accused committed the offence under Sec.8 (1) and (2) of the Abkari Act. Admittedly, the charge witness No.1 is an Asst.Excise Inspector and he conducted search, seizure and arrest along with PW6 preventive officer. CW1 is not examined in this case because he was completely laid up at the time of the trial. The Asst. Excise Inspector is not an authorised person as on the date of the alleged seizure. This point is considered by this Court in several decisions. 5. The Assistant Excise Inspector is not authorised to conduct search and seizure as per the Abkari Act till 8.5.2009. Admittedly in this case the seizure was on 7.12.1999. In **Bhaskaran v. State of Kerala** [2018 (4) KLT 894] and in **Subrahmaniyan v. State of Kerala** [2010 (2) KLT 470] and in **Sasidharan v. State of Kerala** [2012 (2) KLT 392] this Court considered this point. The relevant portion of the judgment in **Bhaskaran’s** case (supra) is extracted hereunder : **CRL.A NO. 671 OF 2008** **5** “12. Here in this case, PW1 was only an Assistant Excise Inspector. It was argued by the learned counsel for the appellant that the arrest of the accused, the seizure of the articles and sampling of the articles done by the Assistant Excise Inspector were without jurisdiction. Since the illegality annexed to the main parts i.e., the arrest, seizure and sampling, that will go to the root of the matter and hence the cognizance taken and the trial conducted based on such a report are vitiated. Though as per SRO No.234/1967, Preventive Officers were invested with the powers to be exercised under Sections 31, 32, 35, 38, 39, 53 and 59, since the preventive officers are officers specifically named as per the aforesaid notification, the arrest of the accused and seizure of the articles and the production of the accused and property before the Magistrate by the Assistant Excise Inspector, who is not a named or notified officer, are without jurisdiction as has been held by this Court in Subrahmaniyan v. State of Kerala (2010(2)KLT 470). 13. It has also come out in evidence that the notificationSRO.361/2009 dated 08.05.2009, as per which the Assistant Excise Inspector of the Range were empowered to exercise all the powers and to perform all the duties of the Excise Inspectors subject to the control of the Excise Inspector. So, as per the latest notification of 2009, all officers of the Excise Department not below the rank of Assistant Excise Inspector were empowered to perform the acts and duties mentioned in Sections 40 to 53 (both inclusive) of the Act. **CRL.A NO. 671 OF 2008** **6** They were also empowered to exercise the duties under Sections 31, 32, 34, 35, 38, 39 and 53 of the Act and to exercise all the powers conferred and to perform all the duties assigned on Abkari Officers under the sections aforesaid. 14. In this case, the offence was detected on 16.4.2002 i.e., before the notification S.R.O.361/2009 dated 08.5.2009. So, the above said notification will not rescue the prosecution in this case since the offence was detected on 16.4.2002. So, the only basis on the notification S.R.O.234/1967, the Assistant Excise Inspector was not mentioned as authorised person to detect the offence. Only the offences detected by the Assistant Excise Inspector after 8.5.2009 is to be well within his power. So only the sole ground that the Assistant Excise Inspector was not empowered under the Act as has held in the ruling in **Subrahmaniyan's** case (supra), the appellant herein is entitled to get acquittal as prayed or. Accordingly, this appeal is allowed.” ## 6. Similarly in **Sasidharan’s** case (supra) also, the same point is considered. The relevant portion is extracted hereunder : “17. But it is argued by the learned counsel for the appellant that as per Section 70 of the Act, all notification and orders conferring powers, imposing duties and making appointments under the act may respectively refer to the **CRL.A NO. 671 OF 2008** **7** persons concerned specially by name or in virtue of their office or to classes of officials generally by the official titles. It is argued since as per the notification in S.R.O.No.234/1967 it was specifically mentioned that the acts and duties mentioned in Sections 40 to 53 of the Act are to be performed by the officer not below the rank of Excise Inspector and since PW2 was only an Assistant Excise Inspector, the arrest of the accused, seizure of the articles and sampling of the articles done by him were without jurisdiction. Since the illegality annexed to the main parts i.e., the arrest, seizure and sampling, that will got to the root of the matter and hence cognizance taken and the trial conducted based on such a report are vitiated. Though as per S.R.O.No.234/1967, Preventive Officers were invested with the powers to be exercised under Sections 31, 32, 35, 38, 39, 53 and 59, since the preventive officers are officers specifically named as per the aforesaid notification, the arrest of the accused and seizure of the articles and the production of the accused and property before the Magistrate by the Assistant Excise Inspector who's not a named or notified officer, are without jurisdiction as has been held by this Court in Subrahmaniyan v. State of Kerala 2010(2)KLT 470). 18. Smt.Jasmine, the learned Public Prosecutor submits that the contention that even thereafter no notification was issued authorising and empowering the Assistant Excise Inspector to perform the duties under the Act cannot be countenanced in view of the subsequent notification S.R.O.No.361/2009 dated 8.5.2009 as per which the Assistant **CRL.A NO. 671 OF 2008** **8** Excise Inspector of the Range were empowered to exercise all the powers and to perform all the duties of the Excise Inspectors subject to the control of the Excise Inspector. It was further made clear that all officers of the Excise Department not below the rank of Assistant Excise Inspector were empowered to perform the acts and duties mentioned in Sections 40 to 53 (both inclusive) of the Act. They were also empowered to exercise the duties under Sections 31, 32, 34, 35, 38, 39 and 53 of the Act and to exercise all the powers conferred and to perform all the duties assigned on Abkari Officers under the sections aforesaid. But that notification cannot come to the rescue of the prosecution in this case since this notification S.R.O.No.361/2009 came into force only with effect from 8.5.2009 whereas the offence in this case was detected on 19.6.2001. The incident in the case on hand took place long prior to the aforesaid notification. Hence, following the decision in Subrahmaniyan's case, it has to be held that PW2, the Assistant Excise Inspector was not empowered under the Act as it stood then, to perform the duties under the aforestated provisions. Therefore, only on this ground, this Criminal Appeal is allowed. But it is made clear that on and after 8.5.2009, the arrest of the accused, seizure of contraband, sampling, sealing and production of the accused and properties before Court, done by the Assistant Excise Inspector, would be well within his powers.” ## In the light of the above discussion, the appellant is **CRL.A NO. 671 OF 2008** **9** entitled the benefit of doubt. Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 27.3.2008 in S.C. No. 436/2002 on the file of the Addl.Dist. & Sessions Judge, (Adhoc-I), Kollam is set aside and the appellant is set at liberty. The bail bonds, if any, executed by the appellant, are cancelled. SD/- **JUDGE** **P.V.KUNHIKRISHNAN** SKS