Kerala High Court
P.J. Jose vs The State Of Kerala on 21 February, 2017
Author: B.Sudheendra Kumar
Bench: B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
TUESDAY, THE 21ST DAY OF FEBRUARY 2017/2ND PHALGUNA, 1938
Crl.Rev.Pet.No. 370 of 2013 ()
-------------------------------
CRA 409/2010 of ADDL.DISTRICT & SESSIONS COURT (ADHOC), KASARAGOD
SC 745/2007 of ASST.SESSIONS COURT, HOSDRUG
REVISION PETITIONER/ APPELLANT/ ACCUSED:
-----------------------------------------------------------------
P.J. JOSE,
S/O C.T. JOSEPH, CHERUTHANATH P.O, KODOTH, HOSDURG TALUK
BY ADVS.SRI.T.K.VIPINDAS
SMT.P.K.PRIYA
SRI.K.V.SREE VINAYAKAN
SRI.K.M.HASHIR
SRI.K.M.MUHAMMED HUSSAIN
RESPONDENT/RESPONDENT/ COMPLAINANT:
-------------------------------------------------------------
THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
BY PUBLIC PROSECUTOR, SHRI M V ANANTHAN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
21-02-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.SUDHEENDRA KUMAR, J.
- - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - -
Crl.R.P. No.370 of 2013
- - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - -
Dated this the 21st day of February 2017
O R D E R
The revision petitioner was convicted and sentenced by the courts below under Section 55(a) of the Abkari Act.
2. The prosecution allegation is that on 9.12.2003 at 6 p.m., the revision petitioner was found in possession of five litres of arrack, in contravention of the provisions of the Abkari Act.
3. Heard.
4. The learned counsel for the revision petitioner has argued that since the inventory was prepared by an officer who was not an authorised officer under the Abkari Act, Crl.R.P.370/2013 : 2 : the revision petitioner is entitled to benefit of doubt. The learned counsel for the revision petitioner relied on the decision of this court in Chandran @ Chandrashekaharan v. State [2016(5) KHC 650] to buttress his argument. The learned counsel for the revision petitioner has further argued that since there was inordinate and explained delay in conducting the investigation and filing the final report, the revision petitioner is entitled to benefit of doubt on that ground as well. The learned counsel relied on the decision of this court in Krishnan H. v. State [2015(1) KHC 822] to support his argument.
5. In this case, PW7 was the Assistant Excise Inspector who prepared Ext.P12 inventory. PW7 admitted that he prepared the inventory as instructed by the Assistant Crl.R.P.370/2013 : 3 : Commissioner. PW7 was only an Excise Inspector and hence, he was not having the power to prepare the inventory under Section 67B of the Abkari Act. Sub section (1) to S.53A of the Abkari Act provides that the authorised officer under Section 53A of the Abkari Act is the authorised officer referred to in Section 67B of the Abkari Act. Section 67B provides that the authorised officer must be an officer authorised by the Government by notification in the Gazette and the said officer must be an officer not below the rank of an Assistant Excise Commissioner. S.R.O.No.671/75 provides that the Assistant Commissioners in charge of Excise Divisions are authorised officers under sub section (1) of Section 67B of the Abkari Act for the purpose of Section 67B within their Crl.R.P.370/2013 : 4 : respective jurisdiction. In this case, PW7 was admittedly not an authorised officer under Sub Section (1) of Section 67B of the Abkari Act for the purpose of Section 53A within his jurisdiction. Therefore, he was not an authorised officer competent to prepare the inventory under sub section (2) of section 53A of the Abkari Act. This court in Chandran (supra) held that when the inventory report is prepared by an officer who is not an authorised officer under the Abkari Act, the said report cannot be acted upon. In this case, since Ext.P12 was prepared by an officer not authorised under Section 67B of the Abkari Act, Ext.P12 cannot be acted upon, as it is patently illegal. When Ext.P12 cannot be acted upon, the entire contraband should have been produced before the court. However, in Crl.R.P.370/2013 : 5 : this case, the contraband articles were not produced before the court and instead of that, the prosecution relied on Ext.P12 inventory, which is patently illegal and consequently, the revision petitioner is entitled to be acquitted.
6. It is also to be noted that even though the incident in this case was on 9.12.2003, the final report was filed before the court after completing the investigation only on 17.5.2007, which was after a period of three years and six months from the date of occurrence. PW5 was the Excise Inspector who took over the investigation in this case on 23.3.2007. Thereafter, he visited the place and prepared the scene mahazar. He questioned the witnesses and recorded their statement. After completing the Crl.R.P.370/2013 : 6 : investigation, PW5 filed the final report before the court. No explanation had been given by PW5 as to why there was inordinate delay in conducting the investigation and filing the final report before the court. The court in Krishnan (supra) held that the inordinate delay in conducting the investigation, in the absence of explanation, is fatal to the prosecution case. In this case, there was long and unexplained delay of more than three years and six months in completing the investigation and filing the final report before the court and hence, the same is no doubt, fatal to the prosecution case as held in Krishnan (supra) and consequently, the revision Crl.R.P.370/2013 : 7 : petitioner is entitled to benefit of doubt on that ground also.
In the result, this revision petition stands allowed, setting aside the conviction and sentence passed by the courts below under Section 55(a) of the Abkari Act and the revision petitioner is acquitted for the said offence. The bail bond of the revision petitioner stands discharged.
Needless to state that if the revision petitioner had deposited any amount before the trial court pursuant to the direction of this court, the revision petitioner is entitled to reimbursement of the same from the trial court.
Sd/- B.SUDHEENDRA KUMAR, JUDGE dl/.22.2.2017 // True Copy // PAto Judge