Viswan v. State of Kerala

**'CR'** IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MRS. JUSTICE ANNIE JOHN WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940 ## CRL.A.No. 1760 of 2008 AGAINST THE JUDGMENT IN SC 242/2005 of ADDL. DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC)-II, KOZHIKODE ## APPELLANT/ACCUSED: VISWAN, S/O. SREEDHARAN, IRUMBAN CHEEDAN,, KUNNUMMAL HOUSE, RAROTH AMSOM,, KEDVOOR DESOM, MUTTUKADAVU. BY ADV. SRI.T.G.RAJENDRAN ## RESPONDENT/COMPLAINANT & STATE: - 1 THE SUB INSPECTOR OF POLICE, THAMARASSERY POLICE STATION. - 2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SMT. SHEEBA KK, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **JUDGMENT** The appellant is the accused in S.C. No. 242 of 2005 on the file of the Additional District and Sessions Court, Fast Track (Adhoc-II), Kozhikode for an offence punishable under Section 8 of the Abkari Act. 2. The case of the prosecution is that on 11.02.2004, at 5.15 Crl. Appeal No. 1760/2008 -2- p.m., the accused was found in possession of two litres of arrack in a can in the courtyard of House No. 16/460 belonging to his wife at Muttukadavu in Thamarassery Panchayath in Kedavur Desom in Raroth Amsom. Originally, the case was charge-sheeted under Section 55(a) of the Abkari Act; later it was altered to Section 8 of the Abkari Act. 3. On the side of prosecution, PWs 1 to 4 were examined and Exts.P1 to P7 and MO1 were marked. After the closure of the prosecution evidence, the accused were questioned under Section 313 of Cr.P.C. No defence evidence was adduced on the side of the accused. 4. The case was originally filed before the Judicial First Class Magistrate-I, Thamarassery as C.P. No. 52 of 2004. After complying the legal formalities, the learned Magistrate committed the case to the Sessions Court, Kozhikode. Thereafter, the case was made over to the Asst. Sessions Court (IIIrd Addl.), Kozhikode. 5. The learned Additional Sessions Judge, as per judgment dated 01.07.2008, found him guilty of the offence and convicted and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default to pay the fine, to undergo rigorous imprisonment for six months. Set off was also allowed. 6. PW1 has deposed that while he was on patrol duty, he saw the accused standing in the courtyard of his house with a can and glass in Crl. Appeal No. 1760/2008 -3- his possession and two other persons standing near to him. He obtained the can from the possession of the accused and verified the same and found that the said can contained two litres of arrack. He has taken two samples of 180 ml. each from the contents of the can. Then he sealed the can and the sample bottles, and affixed labels containing the signatures of himself, accused and the witnesses. Thereafter, he seized the thondi articles by preparing Ext.P1 mahazar and arrested the accused as per Ext.P2 memo. After reaching the office, he registered the case as per Ext.P3 FIR. On the next day, he has produced the thondi articles before court. He has also prepared the forwarding note and placed before the court for sending the sample for chemical analysis. Ext.P4 is the forwarding note and Ext.P5 is the Chemical Analysis Certificate. The case was investigated by the S.I of Police, Kodencherry. The site plan received from the Village Office was marked as Ext.P6. MO1 can and glass were identified by him. MO1 'can' contains the label with the signatures of the detecting officer, the accused and the witnesses. After the completion of the investigation, the case was charged against the accused. 7. PW2, a Constable who accompanied PW1 at the time of detecting the offence. He has also illustrated the incident in accordance with the evidence adduced by him. PW3 is an independent witness, Crl. Appeal No. 1760/2008 -4- who turned hostile to the prosecution. PW4 is the S.I of Police, Kodencherry, who has investigated the case as per the direction of the C.I of Police Thamarassery. He has also prepared the scene mahazar, which was marked as Ext.P7. 8. In fact, the prosecution has examined three witnesses, out of whom PW3 turned hostile to the prosecution. PW1 is the detecting officer. PW2 is the Constable who accompanied PW1 at the time of detection of the offence. No doubt, the evidence of the detecting officer, who was examined as PW1 was supported by the evidence of PW2. The evidence of PWs 1 and 2 stand corroborated by Ext.P1 seizure mahazar, Ext.P2 arrest memo prepared at the spot and Ext.P3 FIR. 9. The defence has taken a contention that the sole testimony of official witnesses is not sufficient to arrive at a conclusion that the accused is guilty of the aforesaid offence. In support of the said contention, he placed reliance on the decisions in _**Tahir v. State (Delhi)**_ [AIR 1996 SC 3079] and _**Karamjitj Singh v. State (Delhi Admn.)**_ [AIR 2003 SC 1311]. In the absence of independent witnesses, the evidence of official witnesses is not sufficient enough to prove the case. The evidence adduced by the Detecting Officer as well as PW2 would conspire confidence. That itself is sufficient to arrive at a point that the accused committed the offence as alleged by the prosecution. Crl. Appeal No. 1760/2008 -5- 10. Ext.P5 Chemical Analysis Certificate shows that the samples which reached the laboratory was two sealed bottles containing 180 ml of clear and colourless liquid alleged to be arrack involved in Crime No. 41 of 2004 of Thamarassery Police Station. The seals on the bottles were in tact and found tallied with the sample seal provided. On analysis, it was found that the samples were containing 24.95% and 23.55% respectively of ethyl alcohol. 11. The learned counsel for the appellant has argued that the offence was detected by the S.I of Police, Thamarassery and subsequently, the case was investigated by S.I of Police, Kodenchery. According to the version of PW4, he has investigated the case as per the direction of the C.I of Police, Thamarassery. It is also contended that PW4 had no authority to investigate the case. In support of his contention, he has placed reliance on the decision reported in _**Mahesh M.K v. State**_ (2017 (1) KHC 120), in which it is held that a Police Officer appointed as an Abkari Officer as per the notification is not an Abkari Officer everywhere, that he is an Abkari Officer only within his territorial jurisdiction, and that he cannot investigate into an offence committed outside his jurisdiction even upon the orders of his superior Officers. The same view has been reiterated in the decisions of this Court reported in _**Saji @ Kochumon v. State of Kerala**_ (2010 (3) KLT 471) Crl. Appeal No. 1760/2008 -6- ## and _**Narayankutty v. State of Kerala**_ (2015(1) KHC 702). 12. Section 44 of the Abkari Act provides that any Abkari Officer holding an inquiry may summon any person to appear before himself to give evidence on such inquiry or to produce any document relevant thereto which may be in the possession or control of such person. Section 45 of the Abkari Act provides that every summons issued under Sec.44 shall state whether the person summoned is required to give evidence or to produce the documents, or both, and shall require him to appear before the said Officer at a stated time and place. Section 46 of the Abkari Act stipulates that a person so summoned shall attend as required and shall answer all questions relating to such inquiry put to him by the said officer. It is also provided therein that the answers shall be reduced into writing and shall be signed by such Officer. Sections 44 to 46 make it clear that Abkari Officers alone have powers to investigate into abkari offences. 'Abkari officer' as defined under Sec.3 (2) of the Abkari Act means the Commissioner of Excise or any Officer or other person lawfully appointed or invested with powers under Sections 4 or 5. As per Section 4, the Government may, by notification in the Gazette, appoint Officers to perform the act and duties mentioned in Sections 40 to 53. In exercise of the powers confirmed by Section 4, the Government of Kerala issued a notification, namely, G.O(P) No.69/96/TD Crl. Appeal No. 1760/2008 -7- dated 29.3.1996. The notification was published in the Gazette as SRO No.321/96. As per the notification, the Government of Kerala had appointed all police officers of and above the rank of Sub Inspector of Police in charge of law and order and working in the Central Executive Branch of the Police Department to be Abkari Officers under their respective jurisdiction for the purposes of Sections 31 to 35, 38,40 to 53 and 59 of the Abkari Act and to exercise all the powers and to discharge all the duties conferred and imposed on the Abkari Officers in the sections aforesaid. The appointment of police officers as per the notification as “Abkari Officers” is only to exercise the powers within their respective jurisdiction. The 'jurisdiction' referred to in the notification is the territorial jurisdiction. 13. PW1 is the Sub Inspector of Police, Thamarassery. Definitely, he is the “Abkari Officer” within the territorial jurisdiction of the Thamarassery Police Station. PW4 is the SI of Police, Kodenchery, who has investigated the case as per the direction of the CI of Police, Thamarassery, who has no power to designate PW4 as the Abkari Officer to investigate the offence committed within the limits of the Thamarassery Police Station. Here, PW4, the Abkari Officer of the Kodencherry Police Station, has conducted investigation of the abkari offence allegedly committed within the territorial limits of Thamarassery Crl. Appeal No. 1760/2008 -8- Police Station. He has no power to exercise the power of the Abkari Officer outside the limits of the Kodencherry Police Station. As per the evidence, he has done it as per the direction of the C.I of Police, Thamarassery. There is no provision either in the Abkari Act or no notification was issued by the Government to confer jurisdiction to the Abkari Officers outside the jurisdictional limit. Needless to say that the Government of Kerala alone is empowered to appoint an Abkari Officer. No doubt, the CI, Police, Thamarassery has no power to confer jurisdiction to the ASI of Police, Kodencherry to investigate this case. 14. In view of the above, it is clear that the cognizance taken on the final report submitted by PW4, the S.I of Police, Kodencherry, who has no authority to file a final report in the case, is illegal and the trial conducted and the conviction and the sentence awarded against the appellant also cannot be sustained. Therefore, it can only be set aside. In the result, the conviction and the sentence passed against the petitioner in S.C. No. 242 of 2005 by the Additional District & Sessions Judge, Fast Track (Adhoc-II), Kozhikode is set aside. The bail bond executed by him shall stand cancelled and he is set at liberty forthwith. sd/- **ANNIE JOHN, JUDGE.** _Rv_ Crl. Appeal No. 1760/2008 -9-