Madras High Court
M. Janakiraman And Another vs State, Rep. By The Tahsildar-Cum-Sales ... on 14 September, 2001
Author: C. Nagappan
Bench: C. Nagappan
ORDER
1. The petitioners in both the revision petitions were accused Nos.1 and 2 in C.C.No.195 of 1991 on the file of Chief Judicial Magistrate at Pondicherry. Both of them were convicted for the offences punishable under Sections 31, 33, 37(a) and 38(1) of Pondicherry Excise Act, 1970 and both of them were sentenced to undergo rigorous imprisonment for six months under each head and the sentences were ordered to run concurrently and each of them was sentenced to pay a fine of Rs.10,000 under each head and for each default to undergo simple imprisonment for three months. Aggrieved by that, accused No.2 Settu preferred appeal in C.A.No.31 of 1997 and accused No.1 Janakiraman preferred appeal in C.A.No.32 of 1997 and the Second Additional Sessions Judge, Pondicherry, heard both the appeals together and passed a common judgment confirming the conviction of the appellants in both the appeals for the offences under Sections 31, 33 and 37(a) of the Pondicherry Excise Act and modified the sentences by imposing the sentence of three months rigorous imprisonment to each of the appellants under each count and ordered the sentences to run concurrently and further sentenced each of the appellants to pay a fine of Rs. 1,000 under each count, in default to undergo simple imprisonment for one month under each count. Against the common judgment, accused No.1 Janakiraman has filed Criminal Revision Case No.249 of 1998 and accused No.2 Settu has filed Criminal Revision Case No.278 of 1998 in this Court.
2. The case in brief is as follows. On 28.4.1990 at 7.30 a.m., P.W.5 Tahsildar (Excise) Viswanathan, alongwith his officials and Police party, went on a routine raid and they received information that some people were indulging in manufacturing illicit Indian Made Foreign Liquor (IMFL) at Aranganoor. They reached Aranganoor and when they went near the unfinished house of accused No.1 Janakiraman, they noticed the smell of arrack from that house. On seeing them, a person, who was standing there, ran away and they found a lady there. On enquiry, they came to know that she was Vasantha alias Kumari, the daughter-in-law of Janakiraman and the person, who ran away from there, was accused No.2 Settu, another son of Janakiraman and the house belonged to accused No.1 Janakiraman. P.W.5 Excise Officer Viswanathan found a room in the house locked. When enquired, Vasantha told them that the key was with accused No.2, who ran away from there.
Thereupon, the lock was broke open and they went inside and saw 2000 bottles containing illicit manufactured brandy and they also found apparatus and other items for manufacturing illicit brandy along with empty bottles. P.W.5 Viswanathan seized the materials under cover of mahazar in the presence of Vasantha and Assistant Inspector. P.W.5 registered a case in Crime No.4 of 1990 under Sections 31,33, 37(a) and 38(1) of Pondicherry Excise Act and sent the samples for chemical analysis. He examined the witnesses and laid the final report.
3. The point for determination is whether the judgments of the courts below are vitiated by manifest illegality or irregularity.
4. The learned counsel appearing for the petitioners in both the revisions strenuously contended that the prosecution has failed to prove that neither the house from which the contraband was allegedly seized belonged to or occupied by petitioner Janakiraman and his son nor the petitioners were in possession of the contraband seized. Both the petitioners were charged for the offences of illegally manufacturing IMFL under Section 31, for illegal possession of the same under Section 33 and for knowingly allowing the premises to be used for the illegal manufacturing of it under Section 37(a) of the Act.
5. Under Section 37(a), the prosecution has to prove that the petitioners are the owners or occupiers or having the use or care or management or control of the premises in question for committing the offence thereunder. The prosecution has examined five witnesses for proving its case. P.W.1 Venkatasubbu, who is said to have witnessed the seizure, did not support the case of the prosecution and was declared hostile. P.Ws. 2 and 3 are the police constables, who accompanied P.W.5 Excise Officer at the time of raid. P.W.4 is the Chemical Analyst who examined the contraband and issued Ex.P-2 report stating that the contraband contained alcohol which did not confirm with the standard prescribed for IMFL.
6. According to P.W.5, on information, he along with party, went to the house bearing Door No.2 in Mariyamman Koil Street, Aranganoor and found the house incomplete and they smelt spirit odour in it and when they entered the house, a person, who was standing in front of the house, ran away and escaped and they saw one lady by name Kumari alias Vasantha there and when enquired, she told them that the house belong to her father-in-law Janakiraman and both his sons, namely, her husband and her brother-in-law are residing in the house and the man who ran away is her brother- in-law Settu. He has further added that they found a room in the northern side locked and odour of illicit spirit came from that room and on enquiry, Tmt. Kumari told them that the key was with her brother-in-law Settu. According to P.W.5, they were forced to break open the room and on opening the same, they found large number of bottles filled with illicit manufactured IMFL in various brands and the machine used for sealing the bottle and he seized the materials under mahazar and obtained signatures of Tmt. Kumari and another witness in it. Tmt. Kumari alias Vasantha was neither shown as a witness nor examined. She was also not arrayed as an accused in the case. P.W.5 in the cross-examination has stated that he did not add Vasantha as accused because she is a lady. According to P.W.5, he came to know from her only that the house from which contraband was seized belong to Janakiraman and he along with his two sons resides in that house and they are in occupation of the same. This is only hearsay and the said Tmt. Kumari alias Vasantha was not examined. Further, it is only Tmt. Kumari who informed P.W.5 that the person who ran away from the house is her brother-in-law Settu. The testimonies of P.Ws.2 and 3 also do not help the prosecution case in this regard. The prosecution has not examined any neighbour to show that the house in question was in occupation, care or control of the petitioners Janakiraman and Settu. The prosecution has not filed any revenue record to show the ownership of the house in question. In fact, P.W.5 in cross-examination has admitted that he has not adduced any evidence to prove the fact that the house belong to Janakiraman. Further, the prosecution has not adduced any evidence to show that the petitioners manufactured illicit IMFL and were in possession of the same.
7. The courts below have not approached the question in proper perspective and there are legal infirmities in the judgments of the courts below.
8. Both the learned counsel appearing for the petitioners further contended that in this case, the complainant himself, who had seized the material objects and who had given the first information report, had conducted the investigation and therefore the entire proceedings are vitiated. To support this contention, they mainly relied upon the judgment of Supreme Court in Megha Singh v. State of Haryana, , in which, the Supreme Court has held as follows:
"P.W.3, Siri Chand, head constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under S. 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartical investigation."
Learned counsel have also brought to my notice the following decisions of this Court.
(1) State by Public Prosecutor v. Krishnasami Iyer & Two others, 1997 (2) L.W. (Cri.) 751). (2) Rathinam v. State by Forest Range Officer, Vazhapadi, 2001 (1) L.W. (Cri.) 143. (3) S. Chandran v. State, rep. by Inspector of Police, Sivakasi Town,. 2001 (1) L.W. (Cri.) 230) It would appear that though there is no specific statutory bar, the Supreme Court inclined to take a view that it would not be conducive to fair and impartial investigation for the complainant himself to be an investigating officer.
9. The learned Public Prosecutor on behalf of the respondent contended that under the provisions of Pondicherry Excise Act, the Excise Officers are empowered to conduct search and also are entitled to make investigation and complete it in accordance with law and therefore the proceedings are not vitiated and relied on the judgment of the Apex Court in State of Punjab v. Balbir Singh, . The Supreme Court has laid down as follows.
"..... when a Police Officer carrying on the investigation including search, seizure or arrest empowered under the provisions of the Cr.P.C. comes across a person being in possession of the narcotic drugs or psychotropic substances then two aspects will arise. If he happens to be one of those empowered officers under the NDPS Act also then he must follow thereafter the provisions of the NDPS Act and continue the investigation as provided thereunder. If on the other hand, he is not empowered then the obvious thing he should do is that he must inform the empowered officer under the NDPS Act who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. ....."
The powers of the empowered officer to search and conduct further investigation are clearly enunciated in the above decision. The dictum laid down is that when the empowered officer on prior information conducted search and seized the contraband, he is under obligation to make further investigation and complete it under NDPS Act. The decision of this Court in Gopal Gani Ram and others v. Superintendent of Customs and Central Excise, C.I.U., Tiruchirappalli, 1999, MLJ (Cri.) 387, is also brought to my notice in this regard.
10. Chapter VIII of Pondicherry Excise Act deals with detection, investigation and trial of offences and it empowers the excise officers to conduct search, to seize the articles liable for confiscation, to arrest without warrant, to conduct investigation and to complete it. Since the excise officer is empowered to conduct search and is also entitled to make investigation and complete the same in accordance with law, the fact that the complainant himself conducted investigation, in the present case, would not vitiate the proceedings. The contention of the petitioners that the procedure adopted by P.W.5 in filing the complaint and conducting the investigation are vitiated by illegality cannot be accepted.
11. However, it is already decided that the judgments of the courts below cannot be sustained on account of infirmities and misreading of evidence. Hence, both the revisions are allowed and the revision petitioners are found not guilty for the charges framed against them and the conviction and sentences imposed on them by the courts below are set aside and they are acquitted. The fine amount if any paid by them shall be refunded to them. Bail bonds, if any, executed by the petitioners shall stand cancelled.