Kerala High Court
Sreenivasan Thampi vs State Of Kerala on 15 December, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
TUESDAY, THE 8TH DAY OF OCTOBER 2013/16TH ASWINA, 1935
CRL.A.No. 98 of 2007 ( )
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AGAINST THE JUDGMENT IN SC 799/2001 of THE ADDL. SESSIONS JUDGE
(ABKARI), KOTTARAKKARA, DATED 15.12.2006
APPELLANT(S)/ACCUSED:
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SREENIVASAN THAMPI, S/O.GANGADHARAN,
KOCHUVILA VEEDU, KATTAYIL CHERRY, ODANAVATTOM VILLAGE.
BY ADV. SRI.V.JAYAPRADEEP
RESPONDENT(S):
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STATE OF KERALA, REPRESENTED BY
THE SUB INSPECTOR OF POLICE, POOYAPPALLY.
BY PUBLIC PROSECUTOR ADV.SMT.M.T.SHEEBA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
08-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
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Crl.A.No.98 of 2007
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Dated this the 8th day of October, 2013.
J U D G M E N T
The appellant is the sole accused in S.C.No.799/01 of the court of Additional Sessions Judge (Abkari), Kottarakkara, who preferred the above appeal as he is aggrieved by the judgment dated 15.12.2006 of the court below in the above sessions case, by which he is convicted for the offence under section 55(a) and (i) of the Abkari Act.
2. The prosecution case is that, on 4.8.2000 at 9.45 a.m., the appellant/accused was found in possession of 5 ltrs. of arrack in a jerry can for sale with a drinking glass by standing by the side of the fencing on the western side of coconut garden owned by one George of Kochuvila by the side of his house at Kattayil, which was detected by PW2, who was then working as Assistant Sub Inspector of Crl.A.No.98 of 2007 2 police, Pooyappally police station. According to the prosecution, PW2 has seized the contraband article and arrested the appellant/accused and registered Crime No.225/00 in the Pooyappally police station and thus according to the prosecution, the appellant/accused has committed the offences punishable under section 55(a) and
(i) of the Abkari Act.
3. On completing the investigation in the above crime, report was filed in the court of Judicial First Class Magistrate-II, Kottarakkara, wherein C.P.No.18/01 was instituted and by order dated 14.3.2001, the learned Magistrate committed the case to the Sessions court, wherein S.C.No.799/01 was instituted and eventually transferred to the present court for trial and disposal. When the appellant/accused appeared, a formal charge was framed against him for the offences punishable under sections 55(a) and (i) of the Abkari Act, which when read over and explained to the appellant/accused, he denied the Crl.A.No.98 of 2007 3 same and pleaded not guilty and consequently, the prosecution adduced its evidence by examining Pws.1 to 4 and producing Exts.P1 to P5. M.Os.1 to 3 were also identified and marked as material objects. The trial court has finally found that the prosecution has succeeded in making out its allegation against the appellant/accused and accordingly he is found guilty of the charges and convicted for the offences under sections 55(a) and (i) of the Abkari Act. On such conviction, the appellant/accused was sentenced to undergo rigorous imprisonment for 3 years each and to pay fine of `1 lakh each and in default to undergo rigorous imprisonment for 3 more months each for the offences under sections 55(a) and (i) of the Abkari Act. The substantial sentence is ordered to run concurrently. It is the above finding, order of conviction and sentence that are challenged in this appeal.
4. I have heard Adv.Sri.Jayapradeep V., learned counsel appearing for the appellant and Crl.A.No.98 of 2007 4 Adv.Smt.M.T.Sheeba, learned Public Prosecutor.
5. Learned counsel for the appellant, among other contentions, has vehemently contended that the findings of the court below and the order of conviction and sentence are liable to be set aside, as the same are unsustainable, since in the present case, the seizure was effected and the appellant/accused was arrested by PW2-who is not authorised and empowered to exercise any such powers under Sections 30 to 53 of the Kerala Abkari Act. The learned Public Prosecutor on the other hand submitted that, in view of the decision of this Court in Joy Vs. State of Kerala (2010(3) KLT 20), the Assistant Sub Inspector of Police, who is an Officer in charge of Pooyappally police station is a competent officer and the contention of the counsel for the appellant is unsustainable and there is no illegality in accepting the evidence collected by PW2 by the seizure effected by him.
6. I have carefully considered the arguments Crl.A.No.98 of 2007 5 advanced by the learned counsel for the appellant as well as the learned Public Prosecutor and I have gone through the evidence and materials available on record.
7. In the light of the rival contentions advanced by the counsel for the appellant and the learned Public Prosecutor, the question to be considered is whether the seizure and arrest effected by the Assistant Sub Inspector of Police, Pooyappally police station and the evidence collected by him connected with the seizure of the contraband article and the arrest of the appellant/accused are valid, correct and legal, and whether the trial court is justified in convicting the appellant for the alleged offences in the light of the available evidence on record.
8. It is beyond dispute that in the present case, the allegation is that the appellant/accused was found in possession of 5 ltrs. of illicit arrack and the same was kept for sale and the same was detected, and the seizure of the contraband article and arrest of the appellant/accused Crl.A.No.98 of 2007 6 were effected by PW2-the then Assistant Sub Inspector of Police, Pooyappally police station, and thus the appellant/ accused had committed the offences punishable under sections 55(a) and (i) of the Abkari Act. The Kerala Abkari Act is a special enactment which was enacted considering the expediency to consolidate and amend the law relating to import, export, transport, manufacture, sale and possession of intoxicating liquor and of intoxicating drugs in the State of Kerala and by Act 16 of 1997, Section 8 of the Kerala Abkari Act is re-numbered as sub section 1 of that section and Sub Section 2 inserted. Thus, as per Section 8(1), "No person shall manufacture, import, export (without permit transit) possess, store, distribute, bottle or sell arrack in any form" and Sub Section (2) of Section 8 is the punishment clause which reads as follows : "If any person contravenes any provisions of sub-section (1), he shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be Crl.A.No.98 of 2007 7 less than one lakh". So, as per the amendment, which I indicated earlier, the possession and sale of other connected acts with respect to the arrack is an offence which is punishable. The scheme of the above Act further shows, particularly in view of Section 3, that there should be an "abkari officer" and as per Sub Section (2) of Section 3, an "Abkari Officer" 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 3(6), an "Abkari Inspector" means an officer appointed under section 4, clause(d)." Section 4 clause (b) empowers the Government to appoint any person other than the Commissioner to perform all or any of his duties. Chapter II of the Abkari Act shows various powers of the Government and the officers of the Government, enabling the Government and the officers to delegate the powers contemplated by the above Act. Section 4(d) states that the Government may appoint officer to take action under Crl.A.No.98 of 2007 8 Sections 40 to 53. In the light of the various provisions contained in the Act, it can be seen that officers of certain category are appointed to perform acts and duties mentioned in Sections 40 to 53 inclusive of these Sections. Accordingly, the Government has issued various notifications. Thus, as per S.R.O.No.239/67 dated 10.8.1967, all officers not below the rank of Excise Inspectors in the Excise Department are authorised to exercise powers under Sections 40 to 53. By another S.R.O.No.361/09 dated 8.5.2009, the Assistant Excise Inspectors of the Excise Departments were also given such powers w.e.f. 8.5.2009. With respect to certain category of Police Officers in the Police Department, authorising them to exercise such powers, there is another government order, ie., G.O.(P)No.69/96/TD dt.29.3.96 which published as per S.R.O.321/96, and the same reads as follows : "All Police Officers of and above the rank of Sub Inspector of Police ; in-charge of Law and Order and working in the Crl.A.No.98 of 2007 9 General Executive branch of Police Department within the local limits of their jurisdiction are conferred the powers under Sections 40 to 53 of the Kerala Abkari Act". So, in the matter related to the control of any offences under the Act and its detection, seizure, arrest etc. special and specific powers and procedures are provided and the same can be exercised only by those Officers who are specifically appointed by the Government through Special Notification.
9. In the case of Police Department, though the above referred notification is issued, the Officer below the rank of Sub Inspector of Police is not authorised or empowered to exercise such powers. Therefore, the Assistant Sub Inspector of Police Department, has no power or authority to exercise any of the powers under Sections 40 to 53.
10. On a reading of Sub Section (2) of Section 4 of the Code of Criminal Procedure, it can be seen that, "All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to Crl.A.No.98 of 2007 10 the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences". The Saving Section 5 of Cr.P.C. reads as, "Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." So, on a conjoined reading of Sub Section 2 of Sections 4 and 5 of Cr.P.C., it can be seen that as far as Abkari offences are concerned, the same shall be governed by the special provisions contained in special enactment, namely the Kerala Abkari Act. If that be so, unless there is specific authorisation upon a particular category of Officers either in the Excise Department or in the Police Department, such Officer of either of the Departments who are not empowered cannot exercise any of the powers Crl.A.No.98 of 2007 11 u/s.40 to 53 prescribed in the Kerala Abkari Act.
11. This Court had an occasion to consider the scope of Sections 4(d), 70, 50 and 55(a) of the Kerala Abkari Act and the competency of Assistant Inspectors of Kerala in the decision reported in Subrahmaniyan Vs. State of Kerala [2010(2) KLT 470]. Similarly, a Division Bench of this Court in the decision in Subash Vs. State of Kerala (2008(2) KLT 1047) has held that, "A Magistrate cannot take cognizance of an offence under the Act on the basis of a report filed by Assistant Sub Inspector of Police, who is not an Abkari Officer as defined under the Act". Before that, another learned Judge of this Court in the decision in Sabu Vs. State of Kerala [2007 (4) KLT 169] has held that, "Assistant Sub Inspector of police is not an authorised officer to detect and investigate an offence under the Act". Recently, another learned Judge of this Court in the decision in Unni Vs. State of Kerala (2009(2) KHC 661) has also held that, "Assistant Sub Inspector of Police, as Crl.A.No.98 of 2007 12 per the notification issued by the Government is not authorised nor empowered to detect or investigate the abkari offences." Similarly, it is held by this Court in the decision reported in Thankamony Vs. State of Kerala [2007(3) KLT SN 19 (C.No.20)], that, "SRO No.321/96 confers authority only to Police Officers of and above the rank of Sub Inspector of Police and not Assistant Sub Inspector of Police to discharge duties conferred on Abkari Officers."
12. In the decision reported in Joy Vs. State of Kerala (2010(3) KLT 20), which is relied on by the learned Public Prosecutor, the learned Judge has not considered the scope of Sections 4(2) and 5 of Cr.P.C. and also about the requirement of conferring powers of the Kerala Abkari Act upon the Officers of the concerned department for enabling them to exercise the powers under Sections 30 to 53 of the Kerala Abkari Act and therefore, according to me, the above decision is not relevant in the Crl.A.No.98 of 2007 13 present case.
13. In the light of the above discussion and in view of the authorities cited supra in the present case, particularly in view of the scheme of the Kerala Abkari Act, the evidence collected by PW2, who was then working as the Assistant Sub Inspector of Police, Pooyappally police station, cannot be accepted and that he was not empowered to invoke any of the powers under Sections 31 to 53 and he is not a competent Officer as contemplated under Sections 4(d) and 70 of Kerala Abkari Act. Therefore, the entire proceedings, including the seizure and arrest of the appellant/accused at the instance of PW2 are vitiated and therefore, the evidence so collected cannot be accepted and acted upon for conviction. Therefore, the findings and conviction recorded by the trial court are not factually and legally sustainable and accordingly the same are set aside.
Crl.A.No.98 of 2007 14
In the result, this appeal is allowed, acquitting the appellant/accused of all the charges levelled against him, by setting aside judgment dated 15.12.2006 in S.C.No.799/01 of the court of Additional Sessions Judge (Abkari), Kottarakkara and the bail bond if any executed by the appellant stand cancelled and he is set at liberty.
Sd/-
V.K.MOHANAN, Judge ami/ //True copy// P.A. to Judge