Kerala High Court
Haridas vs State Of Kerala on 22 February, 2021
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942
CRL.A.No.593 OF 2006
AGAINST THE JUDGMENT IN SC 215/2005 DATED 18-02-2006 OF ADDITIONAL
SESSIONS JUDGE, (FAST TRACK COURT NO.II-ADHOC),THRISSUR
AGAINST THE JUDGMENT IN CP 98/2004 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT, IRINJALAKUDA
APPELLANT/ACCUSED NO.I:
HARIDAS
S/O THAIVALAPPIL VALLON,KULATHUR DESOM, NELLAYI
VILLAGE,, MUKUNDAPURAM TALUK.
BY ADVS.
SRI.P.M.RAFIQ
SRI.P.M.RAFIQ
RESPONDENT/COMPLAINANT-STATE:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
R1 BY SMT. MAYA.M.N, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.593 OF 2006
2
P.V.KUNHIKRISHNAN, J.
===================
Crl.A. No. 593 of 2006
===================
Dated this the 22nd day of February, 2021
JUDGMENT
Appellant is the 1st accused in S.C. No.215/2005 on the file of the Additional Sessions Judge, (Fast Track Court No.II-Adhoc), Thrissur. The above case is charge sheeted against the appellant alleging offence punishable under Section 8(2) of the Abkari Act.
2. The prosecution case is that, on 05-09-2003 at about 7.45 p.m., the 1st accused was found in possession of 10 litres of arrack in a plastic can of 10 litre capacity on a scooter bearing Registration No. KBR 3446 and it was further found that 1 st accused had purchased the arrack from the 2 nd accused and thereby both the accused have committed the offence punishable under Section 8(2) of the Abkari Act.
3. To substantiate the case, the prosecution examined PW1 to PW6. Exts.P1 to P11 are the documents marked on the side of the prosecution. MO1 and MO2 are the material objects. CRL.A.No.593 OF 2006 3
4. After going through the evidence and documents, the lower Court found that, the 1st accused committed the offence punishable under Section 8(2) of the Abkari Act. Second accused is acquitted by the lower Court. The 1st accused is sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,00,000/-. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for a period of 45 days more. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.
5. Heard the learned counsel for the appellant and the learned Public Prosecutor.
6. The learned counsel for the appellant submitted that, Ext.P7, forwarding note is silent with regard to the name of the person through whom the sample is sent. The learned counsel relied judgment of this Court in Kumaran v. State of Kerala [2016 (4) KLT 718]. The learned counsel also submitted that, the search, seizure and arrest in this case was within the jurisdiction of Irinjalakuda Excise Range. The investigation in this CRL.A.No.593 OF 2006 4 case was conducted by PW6. PW6 is the Excise Inspector, Kodungalloor. The learned counsel submitted that, he has no jurisdiction to investigating the case.
7. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the offence against the appellant and there is nothing to interfere with the conviction and sentence imposed by the trial Court. The learned Public Prosecutor submitted that, this Court may not interfere with the conviction and sentence on technical grounds.
8. The point for consideration in this case is that, whether the accused committed the offence under Sections 8(1) & (2) of the Abkari Act.
9. Admittedly, the search, seizure and arrest in this case was within the jurisdiction of Irinjalakuda Excise Range. PW6 is the Kodungalloor Range Excise Inspector. He investigated this case and submitted the final report based on the order of Assistant Excise Commissioner, Thrissur. The Assistant Excise Commissioner has no jurisdiction to delegate the power of CRL.A.No.593 OF 2006 5 investigation to another office. This point was considered by this Court in Balachandran v. State of Kerala [2020 (3) KHC 697]. The relevant portion of the above judgment is extracted hereunder:
" 11. It is an admitted case that the arrest of the accused and seizure of the contraband article was within the limits of North Paravur Excise Range. Ext.P8 is an authorisation issued by the Assistant Excise Commissioner, Ernakulam, authorising PW1 to conduct special checking at Moothakunnam Toll. The seizure of the contraband articles was near Moothakunnam. In Ext.P8, it is clearly stated that the above order is passed for curbing the Indian made foreign liquor seconds and other illicit articles effectively. The counsel for the appellant submitted that there is no dispute that the officer of the Excise can arrest and seize any contraband article from any place. Section 4 of the Abkari Act says that, the Government may by notification in the Gazette, appoint an officer to control the administration of the Abkari Department, may appoint any person other than the Commissioner to perform all or any of his duties, may withdraw Abkari powers from the Commissioner or other officer appointed above, may appoint an officer to take action under Section 40 to 53 of the Abkari Act etc. In exercise of the powers conferred by Section 4 of the Abkari Act 1 of 1077, the Government as per notification issued under Go(Ms)No.356/67/Rev.(S.R.O.No.234/67) CRL.A.No.593 OF 2006 6 appointed certain officers to exercise the powers and to perform the duties specified with their jurisdiction over a specific area. Relevant portions of SRO No.234/67 is extracted hereunder:
Officers and their powers Local jurisdiction and duties (1) (2)
1. xxx xxx xxx xxx xxx xxx
2. xxx xxx xxx xxx xxx xxx
3. xxx xxx xxx xxx xxx xxx
4. xxx xxx xxx xxx xxx xxx
5. xxx xxx xxx xxx xxx xxx
6. xxx xxx xxx xxx xxx xxx
7. xxx xxx xxx xxx xxx xxx
8. All officers of the Excise Within the areas for which they Department not below the rank of are appointed.
Excise Inspectors - to perform the acts and duties mentioned in Sections 40 to 53 inclusive of the Act.
9. The Commissioner of Excise, the The Commissioner of Excise, Joint Commissioner of Excise, the Joint Commissioner of The Deputy Commissioners of Excise throughout the State Excise and all Assistant Excise and Deputy Commissioners of Commissioners to be Abkari Excise and Assistant Excise Officers under their respective Commissioners within the area CRL.A.No.593 OF 2006 7 denominations for the purpose of for which they are appointed.
Sections 31.32,34,35, 38, 39, 53,
59, 67 and 67A of the Act and to
Exercise all the powers and to
discharge all the duties conferred
and imposed on Abkari Officers in
the Sections aforesaid.
10. Circle Inspectors of Excise, Within their respective
Excise Inspectors attached to the jurisdiction
Circles and Excise Inspectors in
charge of Ranges to be Abkari
Officers under their respective
denominations for the purposes of
Section 31,32,34,35,38,39,53 and
59 of the Act and to exercise all the
powers and to discharge all the
duties conferred and imposed on
Abkari Officers in the Sections
aforesaid.
11. Excise Inspectors in charge Within the range in which the
of Distilleries, Warehouses, distillery,
Breweries, Wineries etc., mentioned warehouse,brewery,winery etc.
in Section 14(d)-to be Abkari is situated.
Officers under their respective
denominations for the purposes of
Sections 31,32,33,34,35,38,39,53
and 59 of the Act and to exercise all
the duties conferred and imposed on
Abkari Officers in the sections
CRL.A.No.593 OF 2006
8
aforesaid.
12. Preventive Officers of the Excise Within their respective
Department on duty within the jurisdiction
Kerala State-to be Abkari Officers
under their respective
denominations for the purposes of
Sections 31,32,34,35,38,39,53 and
69 of the Act and to exercise all the
powers and to discharge all the
duties conferred and imposed on
Abakri Officers in the sections
aforesaid.
13. Excise Guard of the Excise Within the areas for which they
Department on duty within the are appointed.
Kerala State to be Abkari Officers
under their respective
denominations for the purpose of
Sections 34, 35, 38, 39, 53 and 59
of the Act and to exercise all the
powers and to discharge all the
duties conferred and imposed on
Abkari officers in the sections
aforesaid.
Provided that, with reference to Section 31 and 34 of the Act,
there shall be no limit of jurisdiction within the Kerala State for the Abkari and other Department Officers named therein; but all CRL.A.No.593 OF 2006 9 persons arrested and all seizures made thereunder shall, without delay, be made over to the Excise Officer possessing local jurisdiction.
12. A reading of the proviso to the above notification, it is clear that, concerning Sections 31 and 34 of the Act, there is no limit of jurisdiction within the Kerala State for the Abkari and other Department Officers named therein, but all persons arrested and all seizures made thereunder shall without delay be made over to the Excise Officer possessing local jurisdiction. Section 31 of the Abkari Act deals with Abkari and Police officers' power to search houses, etc. without a warrant. Section 34 of the Act deals with the power to arrest without warrant in any public place, thoroughfare or open space other than a dwelling house. Actually, Ext.P8 is issued only in accordance with the above proviso to the notification. In Ext.P8, the power is given to Aluva Circle, Aluva Range, and Angamaly Range of the Excise Department for conducting a special check at Moothakunnam toll for curbing effectively Indian made foreign liquor seconds and other illicit articles. Accordingly, PW1 conducted the detection and arrest of the accused in this case. After arrest and seizure, he produced the accused and the contraband articles along with the vehicle before the Excise Officer having local jurisdiction over Moothakunnam Toll, and he is charge witness No.11 in this case. There is no defect in the arrest, seizure of the contraband article by PW1 from Moothakunnam toll junction, even though, it is not an area within the jurisdiction of PW1 in the light of the CRL.A.No.593 OF 2006 10 proviso to S.R.O.No.234/67. Therefore, the arrest and seizure of the property are proved in this case with the evidence of PW1. Of course, PW2 and PW3 turned hostile to the prosecution. But, they admitted their signature in Ext.P1 seizure mahazar. Simply because, the independent witnesses turned hostile after admitting their signature in the seizure mahazar, the entire arrest and seizure will not vitiate. Therefore, here is a case where the prosecution is able to prove that as per Ext.P1 seizure mahazar, PW1 seized the article mentioned in it along with the appellant and his vehicle. It is also proved that PW1 produced the accused, seized material along with the vehicle before the jurisdictional Excise Range Officer, who is charge witness No.11.
13. When the accused and articles were produced before the jurisdictional Excise Inspector, he conducted the preliminary investigation. He prepared Ext.P3 occurrence report, Ext.P4 list of thondi and Ext.P5 forwarding note. After that, the investigation is conducted by PW4, the Excise Inspector, Aluva Excise Range. He did further investigation after the investigation conducted by charge witness No.11. Charge witness No.11 was not available for examination because he was on long leave. Hence, Exts.P3 to P5 were marked through PW4. Thereafter, the charge was verified and final report was filed by PW5, who is the Circle Inspector of Aluva Excise Range. The contention of the appellant is that, the Excise Inspector or the Circle Inspector of Aluva Excise Range have no jurisdiction to investigate this case and file the final report before the court because there was no authorization to them under Section 4 of the Abkari Act. I think there is CRL.A.No.593 OF 2006 11 some force in the contention of the appellant. Admittedly, S.R.O.No.234/67 is applicable during the period in which the arrest, seizure and the investigation in this case happened. S.R.O. No. 234/57 was superseded only on 8.5.2009 as per S.R.O. No.361/2009.
14. S.R.O.No.234/67, which is extracted above, will show that the investigation and final report under Section 50 of the Abkari Act can be submitted by all the Officers of the Excise department, not below the rank of Excise Inspectors within the areas for which they are appointed. 'Abkari Officer' is defined as per Section 3(2) of the Abkari Act which is extracted hereunder:
"Abkari Officer: means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5."
S.R.O. No.234/67 was issued by the Government as per Section 4 of the Kerala Abkari Act. As per the above notification, all officers of the Excise Department not below the rank of Excise Inspector are authorized to perform the acts and duties mentioned in Sections 40 to 53 within the area for which they are appointed. Similarly, the Commissioner of Excise, the Joint Commissioner of Excise, Deputy Commissioners of Excise and all Assistant Commissioners of Excise to be Abkari officers under their respective denominations for the purpose of Sections 31,32,34,35,38,39,53,59,67 and 67A of the Abkari Act and to discharge of the duties conferred and imposed on Abkari officers in the Sections aforesaid. The Commissioner of Excise and the Joint Commissioner of Excise are having jurisdiction throughout the CRL.A.No.593 OF 2006 12 State. But, Deputy Commissioners of Excise and the Assistant Commissioners of Excise have jurisdiction only within the area for which they are appointed. Circle Inspectors of Excise, Excise Inspectors, attached to the circle and Excise Inspectors in charge of Ranges will be Abkari officers under their respective denominations for the purpose of Sections 31,32,34,35,38,39,53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari officers in the Sections aforesaid within their respective jurisdiction. Similarly, clause 11,12 and 13 of SRO No.234/67 give powers to different officers within their respective jurisdiction or within the area for which they are appointed.
15. Therefore, it is clear that all Excise Department officers not below the rank of Excise Inspector can file a final report under Section 50 only if the detection is within the area for which they are appointed. Clause (8) of SRO No.234/67 is clear about that. Ofcourse, in the proviso to SRO No.234/67, it is stated that, with reference to Sections 31 and 34 of the Act, there shall be no limit of jurisdiction within the Kerala State for the Abkari and other Department Officers named therein; but all persons arrested and all seizures made thereunder shall, without delay, be made over to the Excise Officer possessing local jurisdiction ".
10. In the light of the above judgment, it is clear that, PW6 is a person, who is not authorize to investigate the case. For that simple reason itself, the accused is entitled to the CRL.A.No.593 OF 2006 13 benefit of doubt.
11. Moreover, in Ext.P7 forwarding note is silent with regard to the name of the person through whom the sample is forwarded to the Analyst. This is also fatal to the prosecution. In Ext.P7 forwarding note, the name of the person who took the sample to the Chemical Examiner is not mentioned. If that be so, the benefit of doubt will go to the accused. In this case, the thondy clerk or the person who took the sample to the Analyst are not examined. This Court in Kumaran v. State of Kerala [2016 (4) KLT 718] held as follows:
"There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of CRL.A.No.593 OF 2006 14 the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext.P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained".
CRL.A.No.593 OF 2006 15
12. In the light of the above discussions, I think, the appellant in this case is entitled to the benefit of doubt.
Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per judgment dated 18-02-2006 in S.C. No. 215/2005 on the file of the Additional Sessions Judge, (Fast Track Court No.II-Adhoc), Thrissur is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant, is cancelled.
Sd/-
P.V.KUNHIKRISHNAN JUDGE sa