Kerala High Court
Antony @ Tuk vs State Of Kerala on 22 February, 2019
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
FRIDAY, THE 22ND DAY OF FEBRUARY 2019 / 3RD PHALGUNA, 1940
CRL.A.No. 398 of 2007
AGAINST THE ORDER/JUDGMENT IN SC 406/2005 of ADDITIONAL
SESSIONS COURT (ADHOC)-II, THODUPUZHA DATED 20-02-2007
AGAINST THE ORDER/JUDGMENT IN CP 7/2005 of JUDICIAL
MAGISTRATE OF FIRST CLASS ,NEDUMKANDOM
APPELLANT/ACCUSED:
ANTONY @ TUK, S/O. MANIKKYAN
MALI KARA, VANDANMEDU PANCHAYATH,,
VANDANMEDU VILLAGE.
BY ADVS.
B.RENJITH MARAR
SRI.RENJITH B.MARAR
RESPONDENT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,, ERNAKULAM.
OTHER PRESENT:
SRI SANTHOSH PETER-PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
22.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.A.No. 398 of 2007
-2-
J U D G M E N T
The appellant herein challenges the conviction and sentence against him under Section 55(i) of the Kerala Abkari Act (for short "the Act") in S.C. No.406 of 2005 of the Court of Session, Thodupuzha.
2. He faced trial before the learned Additional Sessions Judge, Adhoc-II, Thodupuzha, on the allegation that when the Assistant Excise Inspector of the Kattappana Excise Range conducted a search at his bunk shop at Mali Kara near Vandanmedu at about 6.00 p.m. on 21.01.2002, on the basis of a secret reliable information, the accused was found possessing Indian Made Foreign Liquor contained in 24 bottles of 375ml capacity for illicit sale. The Assistant Excise Inspector arrested the accused on the spot, and seized the liquor bottles as per a mahazar. On the basis of the arrest and seizure, he himself registered the CRL.A.No. 398 of 2007 -3- crime and occurrence report, and also produced the accused and the properties in Court. After a year, the Excise Inspector took over investigation, and he submitted final report in Court under Sections 55(a) and (i) of the Act.
3. The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him under Sections 55(a) and
(i) of the Act. The prosecution examined four witnesses, and proved Exts.P1 to P6 documents in the trial court. The MO1 to MO3 properties were also identified during trial.
4. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C., and projected a defence of total denial. He did not adduce any evidence in defence.
5. On an appreciation of the evidence, the trial court found the accused guilty under Section 55(i) of the Act. On conviction, he was CRL.A.No. 398 of 2007 -4- sentenced to undergo rigorous imprisonment for one year, and to pay a fine of Rs.1 lakh. Aggrieved by the judgment of conviction dated 20.02.2007, the accused has come up in appeal.
6. On hearing both sides, and on a perusal of the materials, I find a very serious illegality in this case vitiating the whole prosecution case. The offence was detected by an Assistant Excise Inspector. Of course, investigation was conducted by the Excise Inspector. The detection was on 21.01.2002, but the properties were produced in court only on 29.01.2002. PW1 is the Assistant Excise Inspector who detected the offence. He has no explanation for the delay in producing the properties in court. The major functions in this case were done by an Assistant Excise Inspector without authority under the law. In the absence of explanation for the delay in producing the properties, tampering with CRL.A.No. 398 of 2007 -5- the properties will have to be doubted.
7. This Court has consistently held in so many decisions that the various functions under the Act can be discharged only by the officers specifically appointed and authorised 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 S.R.O. 234/1967 by which different powers were conferred on different categories of excise officials.Assistant Excise Inspectors were not given any power under the said notification. In 2009, the Government issued another notification as S.R.O. 361/2009 dated 08.05.2009 in suppression of the 1967 notification. The detection in this case was in 2002. The Assistant Excise Inspector not only detected the offence, he also registered the crime and occurrence report, and even produced the accused and the properties in court. The CRL.A.No. 398 of 2007 -6- occurrence report shows that PW1 registered it as the person in charge of the Excise Inspector. On this point also, this Court has settled that such charge assignments in favour of the subordinate officers will not satisfy the requirements of Section 4 of the Act. The important functions were done by PW1 without any authority as Abkari officer, because he had no powers under the Act to discharge the functions on the date of detection. Thus, I find that the discharge of important functions made by the Assistant Excise Inspector without any authority will vitiate the whole prosecution case, and on this ground itself, the accused is entitled for acquittal.
In the result, the appeal is allowed. The appellant is found not guilty of the offence under 55(i) of the Act, and he is acquitted of the offence in appeal under Section 386(b)(i) Cr.P.C.. Accordingly, the conviction and sentence against CRL.A.No. 398 of 2007 -7- the appellant in S.C. No. 406 of 2005 of the court below will stand set aside, and he will stand released from prosecution.
Sd/-
P.UBAID
rkj/ds 23.02.2019 JUDGE