Kerala High Court
Rajan vs State Of Kerala on 7 December, 2018
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
FRIDAY, THE 07TH DAY OF DECEMBER 2018/16TH AGRAHAYANA, 1940
CRL.A.No.627 of 2005
JUDGMENT IN SC 254/2002 of ADDL.SESSIONS COURT (ADHOC)-II,
KOZHIKODE DATED 14.3.2005
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APPELLANT/ACCUSED :-
RAJAN, S/O.MADAVAN,
ARAYANGATTU HOUSE, MUCHUKUNNU AMSOM DESOM,
KOYILANDY TALUK,, KOZHIKODE DISTRICT.
BY ADVS.SRI.M.ASOKAN
SRI.DEVAPRASANTH.P.J.
RESPONDENT/COMPLAINANT :-
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY SRI.SANTHOSH PETER - PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.12.2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.627/2005
-: 2 :-
JUDGMENT
The appellant herein challenges the conviction and sentence against him under Section 55(a) of the Kerala Abkari Act ('the Act' for short) in S.C. 254/2002 of the Court of Session, Kozhikode. He faced trial before the learned Additional Sessions Judge (Adhoc)-II, Kozhikode on the allegation that at about 11.45 a.m on 21.3.1999, he was found transporting 3.75 litres of Indian made Foreign Liquor contained in 10 bottles of 375 ml capacity in the Bus No.KL-13B-1605. The prosecution would allege that it was liquor purchased and brought from Mahe, in the State of Pondicherry. The offence was detected by an Excise Inspector of the Azhiyoor Excise Check post on the Thalassery-Calicut National Highway. He arrested the accused on the spot and seized the contraband articles as per a mahazar. The accused and the properties were produced at the Excise Range Office, Vadakara by the Preventive Officer, who assisted the Excise Inspector at the CRL.A.No.627/2005 -: 3 :- check post. At the Excise Range Office, Vadakara, a Preventive Officer re-registered the crime and occurrence report and another Preventive Officer conducted initial part of investigation. Later, investigation was taken over by the Excise Inspector, and he submitted final report in court.
2. The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him. The prosecution examined six witnesses and proved Exts.P1 to P11 documents in the trial court. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C. He did not adduce any evidence in defence. The MO1 series properties were also identified during trial by the material witnesses.
3. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for 1½ years and to pay a fine of ₹1,00,000/-. Aggrieved by the judgment of conviction dated 14.3.2005, the accused has come up in appeal. CRL.A.No.627/2005 -: 4 :-
4. On hearing both sides, and on a perusal of the materials, I find that there are some infirmities in this case, the benefit of which must go to the accused. Of the six witnesses examined in the trial court, PW1 is the Excise Preventive Officer, who assisted the Excise Inspector at the Azhiyoor check post in the process of detection. Pending the proceedings, the Excise Inspector, who detected the offence died. But, the Preventive Officer has given evidence regarding the arrest of the accused, and the seizure of 10 bottles of liquor made by the deceased Excise Inspector. PW2 is the conductor of the bus, but he did not support the prosecution. The accused and the properties were produced at the Vadakara Excise Range Office by PW1. PW4 produced the properties in court, and also conducted initial part of investigation. PW5 is only the Village Officer, who prepared the sketch of the scene of detection, and PW6 is the Excise Inspector, who conducted further part of investigation, and submitted final report in court. CRL.A.No.627/2005 -: 5 :-
5. This Court has consistently held in so many decisions that the various functions under the Act can be discharged only by the officers specifically authorised and appointed by the Government as 'Abkari officers' under Section 4 of the Act. In terms of Section 4 of the Act, the Government of Kerala issued a notification in 1967 as SRO 234/1967, by which, different powers to discharge the functions under the Act were conferred on different categories of excise officials of the Regular Excise Wing. Preventive Officers were given power to detect offence under the said Notification, but they were not given powers to register crimes, or conduct investigation under the Act. In this case, the accused and the properties were produced at the Excise Range Office, Vadakara by PW1, from whom, PW3 received the accused and the properties. His claim is that he had charge of the Excise Inspector. The claim of PW4 is also that he had charge of the Excise Inspector. PW3 re-registered the crime at the Vadakara Excise Range, and the CRL.A.No.627/2005 -: 6 :- properties were produced in court by PW4 as part of initial investigation.
6. This Court has settled that a Preventive Officer cannot discharge the functions of an Inspector on a claim that he had charge of the Excise Inspector. Preventive Officers can discharge such functions only if they are specifically authorised by the Government under Section 4 of the Act. Just because, a Preventive Officer had charge of the Excise Inspector for administrative purposes, he cannot discharge the functions, which the Excise Inspector is expected to discharge under the law. The Ext.P6 crime and occurrence report was registered by a Preventive Officer, when he was not competent to do so, and initial part of investigation was done by PW4, another Preventive Officer. This is an infirmity affecting the whole prosecution case.
7. This Court has also settled that the copy of the forwarding note produced in court must be proved in evidence, and it must contain the specimen of the CRL.A.No.627/2005 -: 7 :- seal affixed on the sample. This is to identify the sample produced in court as the one seized from the possession of the accused. The Ext.P9 copy of the forwarding note in this case does not contain the specimen of the seal affixed on the sample. It is not known, what seal was in fact affixed on the sample, because the Excise Inspector, who detected the offence is no more. PW1, who gave evidence regarding detection does not say what seal was affixed by the Excise Inspector. The detection mahazar also does not contain the specimen of the seal affixed on the sample. This is also an infirmity, affecting the prosecution case. In the absence of anything to identify the sample, the report of analysis relating to such a sample will not bind the accused, he cannot be found guilty.
In the result, the appeal is allowed. The appellant is found not guilty of the offence under Section 55(a) of the Act, and he is acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C. Accordingly, the conviction and sentence CRL.A.No.627/2005 -: 8 :- against him in S.C.No.254/2002 of the court below will stand set aside, and the accused will stand released from prosecution.
Sd/-
P.UBAID JUDGE //TRUE COPY// P.A. TO JUDGE Jvt/10.12.2018