Vijayakumar @ Papputty S/o. Madhu v. State of Kerala

## **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.2085 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 1781/2001 OF ADDITIONAL DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC)-II, THIRUVANANTHAPURAM** **AGAINST THE ORDER/JUDGMENT IN CP 40/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VARKALA** ## **APPELLANT/ACCUSED:** **VIJAYAKUMAR @ PAPPUTTY S/O. MADHU, MULLARAMCODE DESOM, OTTOOR VILLAGE,, CHIRAYINKIL TALUK.** **BY ADV. SRI.G.SUDHEER** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **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:** 2 Crl.Appeal No.2085/2006 ## **JUDGMENT** ## **Dated this the 2[nd] day of December, 2020** The appellant is the accused in S.C. No. 1781/2001 on the file of the Additional District and Sessions Judge, Fast Track-II, Thiruvananthapuram. The above case was chargesheeted by the Excise Inspector, Excise Range, Varkala against the appellant alleging offence punishable under Section 8 (1) & (2) of the Kerala Abkari Act. 2. The prosecution case is that on 20.7.1999 at 5.30 p.m., the accused was found in possession of 3 litres of arrack in a 5 litre jerry can and hence he committed the offence under Section 8(1) of the Kerala Abkari Act. 3. To substantiate the case, the prosecution examined PW1 to PW7. Exts.P1 to P7 are the exhibits marked on the side of the prosecution. M.O.1 is the material objects. On going through the evidence and documents in this case, the trial court found that the accused committed the offence under Section 55 (a) of the Kerala Abkari Act. Accordingly, the accused is sentenced to undergo rigorous imprisonment for 1 ½ years and to pay a fine 3 ## Crl.Appeal No.2085/2006 of Rs. 1 lakh. In default of payment of fine, the accused is directed to undergo simple imprisonment for six months. Aggrieved by the conviction and sentence, this Crl.Appeal is filed. 4. Heard the counsel for the appellant and the Public Prosecutor. 5. The counsel for the appellant submitted that the appellant in this case is entitled to benefit of doubt on two grounds. The counsel submitted that the case is registered in this case by a preventive officer. According to the counsel, he is not an authorised person to register the case in Abkari matters. 6. The counsel also submitted that the sample was taken from the seized article by the court. The counsel submitted that the court has no business at all to collect any sample from the property produced before the court in the light of the judgment of this Court in **Smithesh Vs. State of Kerala (2019 (2) KLT 974)** . 7. The Public Prosecutor submitted that there is oral and documentary evidence to prove the offence against the appellant. The Public Prosecutor submitted that there is nothing to interfere with the conviction and sentence imposed by the 4 Crl.Appeal No.2085/2006 lower court. 8. The point for consideration in this case is whether the accused committed the offence under Section 55 (a) of the Abkari Act. 9. Admittedly, PW4, the preventive officer registered the case. As per the Abkari Act, the preventive officer is not an authorised person to register a case. Of course, the preventive officer can detect an offence and arrest the accused. But he has no authorisation to register the case. 10. Whether in such situation a preventive officer can register the case, is a question to be decided in this case. This point is considered by this Court in detail in the 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 other person lawfully appointed or invested with powers under Sections 4 or 5.” Section 3(6) defines 'Abkari Inspector' as follows: 5 Crl.Appeal No.2085/2006 “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.May withdraw Abkari powers from Commissioner or other officer appointed under clause (a) or clause (b):- (c) 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. (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) 6 ## Crl.Appeal No.2085/2006 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 Within the areas not below the rank Excise Inspectors to of for which they are. perform the acts and duties mentioned 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 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.” 11. 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 7 Crl.Appeal No.2085/2006 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. 12. Moreover, admittedly, the sample is taken by the court from the seized articles from the accused. The magistrate has no business to do the same. 13. A perusal of Ext.P1 seizure mahazar, it is clear that no sample is taken by the detecting officer from the spot. This Court in **Smithesh v. State of Kerala (2019 (2) KLT 974** ) considered this point. This Court observed that the learned Magistrate has no business at all to collect any sample from the property produced before the court. The relevant paragraph of the judgment is extracted hereunder : “7. Of the 18 cans produced in court, 15 were seen empty during trial. Four samples were sent for analysis. Evidence shows that two samples each were taken from two cans. Only in three of the cans, some liquid was found during trial. The Ext.P9 report of the learned Magistrate shows that he had also collected some samples. It is not known how, or for what purpose, or under what authority, he collected samples from the property produced before the authorised officer. The Magistrate had no business at all to collect any sample from the property produced before the authorised officer. Even the authorised officer cannot collect sample at that stage. His function is only to verify the properties produced, and prepare an inventory, and the function of the Magistrate is only to verify the inventory to see that the things are proper and correct. Any way, 15 out of the 18 cans are empty in this case. It is not known from which 8 ## Crl.Appeal No.2085/2006 can, sample was taken by the detecting officer or why he did not take sample from the 18 cans.” [Emphasis supplied” 14. Considering the facts and circumstances of the case and in the light of the above discussion, I think the accused in this case is entitled the benefit of doubt. Hence this Crl.Appeal is allowed. Conviction and sentence imposed on the accused as per judgment dated 12.10.2006 in S.C. No. 1781/2001 on the file of the Additional District and Sessions Judge, Fast Track (Adhoc) No. II, Thiruvananthapuram is set aside. The accused is set at liberty and the bail bond if any, executed by him is cancelled. Sd/- **P.V.KUNHIKRISHNAN JUDGE** al/-++