Kerala High Court
Purushan vs The State Of Kerala on 16 August, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
FRIDAY, THE 29TH DAY OF JUNE 2018 / 8TH ASHADHA, 1940
Crl.Rev.Pet.No. 2349 of 2005
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AGAINST THE JUDGMENT IN CRA 9/2004 of ADDL.SESSIONS JUDGE,
ALAPPUZHA DATED 16-08-2005
AGAINST THE JUDGMENT IN SC 386/2000 of ASST.SESSIONS JUDGE,
CHERTHALA DATED 10-12-2003
REVISION PETITIONER/APPELLANT/ACCUSED :-
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PURUSHAN, AGED 49 YEARS, S/O.MADHAVAN,
THOPPILCHIRAYIL VEEDU, MARARIKULAM,
VADAKKU MURI, MARARIKULAM VADAKKU VILLAGE,
CHERTHALA TALUK.
BY ADVS.SRI.C.V.MANUVILSAN
SRI.RENJITH B.MARAR
SRI.G.SUDHEER (THURAVOOR)
RESPONDENT/RESPONDENT/STATE :-
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THE STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY SRI.C.K.PRASAD, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-06-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
rkj
P.UBAID, J.
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Crl.R.P.No.2349 of 2005
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Dated this the 29th day of June, 2018
ORDER
The revision petitioner herein challenges the conviction and sentence against him under Section 55(a) of the Kerala Abkari Act ('the Act') in S.C.No.386 of 2000 of the Court of Session, Alappuzha.
2. He faced prosecution before the learned Assistant Sessions Judge, Cherthala on the allegation that at about 5.00 p.m. on 27.05.1998, he was found possessing 1 B= litres of arrack at his house. The offence was detected by the Circle Inspector of the Excise Enforcement and Anti Narcotic Special Squad, Alappuzha on the basis of secret reliable information. It is alleged that the Circle Inspector conducted a search at the house of the accused, and seized a plastic can of 2 litres capacity, containing 1 B= lites of arrack therein. The accused was arrested on the spot, and the quantity of arrack was seized as per a mahazar. On the basis of the arrest and seizure, the Circle Inspector himself registered Crl.R.P.No.2349 of 2005 2 a crime at the Excise Enforcement office, and thereafter he produced the accused and the properties at the Excise Range Office, Cherthala where another crime and occurrence was registered by the Excise Inspector. After investigation, the Excise Inspector submitted final report in Court.
3. The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him. The prosecution examined five witnesses, and proved Exts.P1 to P7 documents in the trial court. MO1 can was also identified during trial. The accused denied the incriminating circumstances, when examined under Section 313 Cr.P.C. He did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the accused guilty under Section 55(a) of the Act. On conviction, he was sentenced to undergo rigorous imprisonment for one year, and to pay a fine of Rs.1 lakh.
4. Aggrieved by the judgment of conviction dated 10.12.2003, the accused approached the Court of Session, Alappuzha with Crl.Appeal No.09 of 2004. In appeal, the learned Additional Sessions Judge, Alappuzha confirmed the conviction and sentence, and accordingly Crl.R.P.No.2349 of 2005 3 dismissed the appeal. Now the accused is before this Court in revision, challenging the legality and propriety of the conviction and sentence.
5. On hearing both sides, and on a perusal of the materials, I find that there are some serious legal infirmities in this case, the benefit of which must go to the accused. Of the five witnesses examined in the trial court, PW1 is the Circle Inspector who detected the offence, and PW2 is the Preventive Officer who assisted him. PW3 and PW4 who attested the detection mahazar turned hostile during trial. PW5 is the Excise Inspector who registered crime and occurrence report at the Cherthala Excise Range, and submitted final report in Court. It is not known who investigated the case. The Investigating Officer was not examined in the trial court.
6. The offence in this case was detected by a Circle Inspector of the Excise Enforcement and Anti Narcotic Special Squad, Alappuzha. This Court has consistently settled in so many decisions that the various functions under the Kerala Abkari Act can be discharged only by the persons or officers specifically authorised and appointed as Abkari officers under Section 4 of the Act. In Crl.R.P.No.2349 of 2005 4 terms of Section 4, the Government of Kerala issued a notification in 1967 as SRO 234/1967 by which different powers were conferred on different categories of Excise Officials. Only the Excise officials of the regular Excise wing were given powers under the said notification. Ofcourse there is a proviso to the notification that in case any Officer has detected any offence beyond his territorial jurisdiction, he will have to report the fact of seizure or detection at the concerned Range Office, where crime will have to be registered. That proviso applies only to the persons authorised as Abkari Officers under the Government Order. The benefit of the proviso will not go to any other category of officers who are not authorised as Abkari Officers by the Government. These legal aspects were made clear by this Court in Suresh v. State of Kerala [2017(2) KHC 891].
7. The Excise Officials of the special wings like Excise Enforcement and Anti Narcotic Special Squad or Excise Intelligence Squad got powers under the Act to discharge functions only in May 2009 as per the Government Order issued as SRO 361/2009 dated 08.05.2009, issued in suppression of the earlier Crl.R.P.No.2349 of 2005 5 notification. This notification also contains a similar proviso. But the detection in this case was made prior to the notification in 2009. Under the 1967 notification, only the Excise Officials of the regular Excise wing had powers of detection. Members of Special Squads had no power of detection till 08.05.2009. I find that the detection in this case was made by an incompetent Excise Official, and on this ground itself, the prosecution must collapse.
8. This Court has also settled that the forwarding note filed in Court must contain the specimen of the seal affixed on the sample. This is to identify the sample as that collected from the accused. In this case no such forwarding note is seen produced. The detection mahazar also does not show what seal was in fact affixed on the sample by the detecting officer. This is also another legal infirmity.
9. It is curious to note in this case that there are two occurrence reports; one registered by the detecting officer at the Office of the Squad, and the other registered by the Excise Inspector at the Cherthala Excise Range. There cannot be two independent occurrence reports. The first occurrence report shows that it was in Crl.R.P.No.2349 of 2005 6 fact sent to the Court by the detecting officer. If so, it is not known how the second crime happened to be registered at the Cherthala Excise Range. The proper procedure must be to transfer the accused, and the crime and occurrence report to the concerned Excise Range where the crime will have to be re-registered. In this case instead of re-registering the crime properly, the Excise Officials made two independent occurrence reports, and both were separately sent to the Court. The crime and occurrence report registered at the Cherthala Excise Range does not show that the said crime was registered on the basis of any crime registered at the office of the Squad. This is also another infirmity, the benefit of which must go to the accused.
10. It is not known who investigated the crime. PW5 is the Excise Inspector who registered the crime at the Excise Range Office, Cherthala, and submitted final report. He does not say, and he does not know, who made investigation, and he also does now know what actually transpired in between the registration of the crime and the final report. In short, there is no evidence as to who conducted investigation, and how it was conducted. Crl.R.P.No.2349 of 2005 7 Investigation also must be conducted by a proper and competent person. There is no evidence regarding the competence of the person who conducted investigation, and he is not seen examined as a witness in Court. In the absence of anything regarding the seal affixed on the sample, the Court cannot identify the sample in this case as the one seized from the hands of the accused. If so, the chemical analysis report cannot be connected with the accused.
11. As discussed above, I find that there are so many infirmities in this case, and the benefit of these must go to the accused. This is a case involving arrack, and the detection was made after introduction of Section 8 in the Kerala Abkari Act. Instead of prosecuting the accused under Section 8(2) of the Kerala Abkari Act, prosecution was wrongly brought under Section 55(a) of the Kerala Abkari Act. The detection was made on 27.05.1998. Section 8 of the Kerala Abkari Act came into force on 03.06.1997. This Court has on many occasions clarified that a prosecution relating to manufacture or sale or possession of arrack will have to be brought under Section 8(2) of the Kerala Abkari Act, and not under Section 55(a). Crl.R.P.No.2349 of 2005 8 Charge was wrongly framed by the trial court under Section 55(a) of the Act, and the conviction was also made wrongly under Section 55(a) of the Act. Ofcourse, in a case where the conviction is confirmed, the Section of law can be altered by the High Court in revision. But in this case, the accused is being found not guilty.
In the result, this revision petition is allowed. The revision petitioner herein is found not guilty of the offence alleged against him in S.C.No.386 of 2000 of the Court of Session, Alappuzha, and he is acquitted of the said offence in revision. Accordingly, the conviction and the sentence against him in S.C.No.386 of 2000 of the Court of Session, Alappuzha, confirmed in appeal by the Court of Session, Alappuzha in Crl.Appeal No.09 of 2004, will stand set aside, and the revision petitioner will stand released from prosecution.
Sd/-
rkj P.UBAID, JUDGE