IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2115 of 2009()
1. K.K.JOY, S/O.KURIYAN,KOCHOLIKKAL HOUSE,
... Petitioner
Vs
1. STATE OF KERALA,REPRESENTED BY THE
... Respondent
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :02/03/2010
O R D E R
"CR"
P.S.GOPINATHAN, J.
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Crl.R.P.No.2115 of 2009.
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Dated this the 2nd day of March, 2010.
O R D E R
The revision petitioner is the accused in Sessions Case
No.584 of 2003 on the file of the Assistant Sessions Judge,
Hosdurg. He was found guilty, after trial by the learned
Assistant Sessions Judge, for offence under Section 55 (a) of
the Abkari Act. He was sentenced to simple imprisonment
for one year and a fine of Rupees one lakh with a default
sentence of simple imprisonment for three months. In
Criminal Appeal No.170 of 2006, the conviction was
confirmed. But the substantive sentence was reduced to
simple imprisonment for three months. Default sentence
was also reduced to one month.
2. Assailing the legality, correctness and propriety of
the above conviction and sentence as confirmed and
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modified in appeal, this revision petition was preferred.
3. The prosecution case in brief is that on 25/4/2001,
the Assistant Sub Inspector of Police, Chittarikal Police
Station along with Head Constable and Police Constable,
who were examined as PWs.1 and 2 were moving on patrol
duty. At 9.45 a.m., when they reached near the bus stand
complex at Chittarikkal, the revision petitioner was found
carrying a bag at his head and a big shopper in his hand.
Feeling suspicious, the revision petitioner was intercepted
and interrogated. The revision petitioner confessed that the
bag and big shopper contained packets of arrack. On
examination, the bag contained 150 packets of arrack, each
containing 100 ml. of arrack. The big shopper contained
200 packets, each containing 100 ml. of arrack. The
revision petitioner was arrested then and there for which
Ext.P1 arrest memo was prepared. The contraband along
with container was seized. Four packets each from the bag
and big shopper were opened and took as samples in
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bottles, which were sealed then and there. The remaining
packets were taken custody as such. Ext.P2 seizure
mahazar was prepared. Returning to the Police Station, the
Assistant Sub Inspector of Police registered a case as Crime
No.51 of 2001. The investigation was taken over by PW6,
the then Sub Inspector of Police. After completing the
investigation, a charge sheet was laid before the Judicial
Magistrate of First Class-II, Hosdurg. On finding that the
offence alleged is triable by a Court of Session, after
complying with the requisite procedures, committed the
case to the court of Session, Kasargod. From there it was
made over to the Assistant Sessions Judge, Hosdurg. The
learned Assistant Judge, after hearing the prosecution and
the revision petitioner, a charge for offence under Section
55(a) of the Abkari Act was framed. When it was read over
and explained the revision petitioner pleaded not guilty.
Hence, he was sent for trial.
4. On the side of the prosecution, PWs.1 to 6 were
Crl.R.P.No.2115 of 2009.
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examined. Exts.P1 to P8 and MOs.1 to 5 series were
marked. When questioned under Section 313 of the Code of
the Criminal Procedure, the revision petitioner denied the
incriminating evidence and further stated that he had no
connection with the material objects involved, and that
while he was travelling in the bus, he was arrested and the
case was falsely registered against him. Though revision
petitioner was called upon to enter his evidence, no defence
evidence was let in. The Assistant Sessions Judge, on
appraisal of the evidence, arrived a conclusion of guilt, as
mentioned earlier.
5. The Assistant Sub Inspector of Police who
detected the crime is no more. So he could not be
examined. PW.1, the Head Constable and PW.2, the Police
Constable who were accompanying the Assistant Sub
Inspector of Police were examined. PWs.1 and 2 had given
supporting evidence. Pw1 had also deposed that at that
time the Asst.Sub Inspector was the Station House Officer.
Crl.R.P.No.2115 of 2009.
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Though they were subjected to searching cross-
examination, no material was disclosed to disbelieve the
arrest and seizure deposed by them. Ext.P2 would support
the evidence of PWs.1 and 2.
6. PW.3 was examined as a witness to the arrest and
seizure. Though he admitted the signature contained in
Ext.P2 as that of his, he denied of having witnessed the
arrest and seizure. In the light of the evidence of PWs.1 and
2, supported by Ext.P2, I find that the courts below had
rightly appreciated the evidence of PWs.1 and 2 and arrived
a conclusion that the revision petitioner was caught red
handed with the contra band liquor. Sitting in revision, I
fail to find any reason to diverge with the courts below on
finding of facts.
7. Ext.P8 would show that four sample bottles were
forwarded for chemical examination. Ext.P8 would show
that all the samples contained ethyle alcohol. The evidence
of Pw6 coupled with Ext.P2 would show that two samples
Crl.R.P.No.2115 of 2009.
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each were collected from the bag and big shopper. Pw6 had
deposed that thondies were forwarded to the Chemical
Examiner and Ext.P8 is the report of the Chemical
Examiner. The percentage by volume of ethyl alcohol is
38.78, 39.54, 39.60 and 38.96 respectively. Ext.P8 would
convincingly establish that the packets which the revision
petitioner were carrying contained ethyl alcohol. So an
offence under Section 55(a) of the Abkari Act is established.
8. The learned counsel for the revision petitioner
submitted that the contraband was detected by an Asst.Sub
Inspector who is not an empowered officer under Sec.4; and
in that circumstance the detection and seizure of the
contraband are illegal and hence the prosecution is vitiated
and despite the oral evidence available, the revision
petitioner is entitled to an order of acquittal.
9. The learned counsel, in his support, had given
reliance to two decisions of this Court in Sabu v. State of
Kerala [2007(4) KLT 169] and Unni v. State of Kerala
Crl.R.P.No.2115 of 2009.
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[2009(2) KHC 661] The latter decision was rendered
following the former decision. Going through the decision
in Sabu’s case it is seen that the detection and investigation
were conducted by the Asst.Sub Inspector of Police. In
para.11 it is held:
“[E]ven if he was empowered as per the
provisions of S.2(o) Cr.P.C., he cannot exercise
the power conferred on an Abkari Officer. On
this score also, the judgment of the Trial Court
has to be set aside.”
In Unni’s case, at para.5 it is held:
“[S]o, there is much force in the submission of
the learned counsel for the accused that PW1
was not an authorised officer competent to
detect and investigate an offence under the
Abkari Act, and as such the detection made by
him was unauthorised. The accused in the given
facts is entitled to the benefit of doubt since PW1
was not empowered to detect and investigate the
crime.”
10. On the other hand, in this case, the investigation
was conducted by the Sub Inspector. The learned Public
Prosecutor submitted that Sec.31 of the Abkari Act
empowers a Police Station Officer to search and seize a
Crl.R.P.No.2115 of 2009.
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contraband under the Abkari Act and that the search and
seizure were done by the Asst.Sub Inspector in the capacity
as Station House Officer. Sec.31 reads as follows:
“A Police Station Officer, has reason to
believe that an offence under this Act has been
committed and that the delay occasioned by
obtaining a search warrant under the preceding
section will prevent the execution thereof, he
may, after recording his reasons and the
grounds of his belief at any time by day or
night, enter and search any place and may seize
anything found therein which he has reason to
believe to be liable to confiscation under this
Act, and may detain and search and, if he
thinks proper, arrest any person found in such
place whom he has reason to believe to be
guilty of any offence under this Act.”
11. According to the learned Public Prosecutor,
Section 2(o) of the Crl.P.C. defines officer in charge of a
Police Station and any officer above the rank of a Constable
is competent to hold the charge of the Police Station and
that the Asst.Sub Inspector in this case was holding the
charge of the Police Station.
12. A reading of Sec.2(o) Crl.P.C. would be relevant:
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“Sec.2(o). “officer in charge of a police station”
includes, when the officer in charge of the
police station is absent from the station-house
or unable from illness or other cause to
perform his duties, the police officer present at
the station-house who is next in rank to such
officer and is above the rank of constable or,
when, the State Government so directs, any
other police officer so present. “
13. A combined reading of Sec.31 of the Abkari Act
and Sec.2(o) Crl.P.C. would show that the Asst.Sub
Inspector, who is holding charge of a Police Station, is a
competent officer to search and seize the contraband. It
was further submitted that the investigation in this case was
conducted by Pw6, the Sub Inspector of Police and that
even if it is assumed that the Asst.Sub Inspector was not
authorised to search and seizure, the materials disclosed or
the illegality of the search would not affect the validity of
the seizure or vitiate the evidence collected or the
subsequent trial. The learned Public Prosecutor, in support
of the argument, canvassed my attention to the decision in
Hassan v. State of Kerala (1989(2) KLT 581).
Crl.R.P.No.2115 of 2009.
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14. Hassan v. State of Kerala, is a case relating to
Edible Oil Seeds, Edible Oils, Vanaspati and Baby Food
Dealers Licensing Order, 1975. Identical is the provision in
Clause 19 of the said order. A Division Bench of this Court
held that, ‘the Asst.Sub Inspector in case he was authorised
to exercise the powers of a Sub Inspector, the search and
seizure done by him could not be held illegal and that even
if search and seizure are illegal, that would not vitiate the
subsequent investigation, further trial and conviction. A
reading of paragraphs 20, 21 and 22 would be appropriate.
It reads:
“20. Learned counsel for the appellant next
contended that the Asst.Sub Inspector of Police
is incompetent to seize the articles and in the
circumstances the trial is illegal and conviction
is liable to be set aside. Learned counsel invited
our attention to Clause 19 of the Order dealing
with search and seizure. It lays down that only
an officer of the Civil Supplies Department not
below the rank of an Asst.Taluk Supply Officer,
or any Officer of the Revenue Department not
below the rank of a Deputy Tahsildar, or any
police officer not below the rank of Sub
Inspector, or any other officer of the GovernmentCrl.R.P.No.2115 of 2009.
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authorised by the District Collector in this
behalf, may with a view to secure compliance
with the provisions of this Order or to satisfying
himself that the said provisions have been
complied with, has power to effect search and
seizure. The learned counsel submitted that the
Assistant Sub Inspector of Police is below the
rank of the Sub Inspector and therefore he has
no competence to effect search and seizure. In
support of his contention the learned counsel
invited our attention to the decisions in
Kunhikannan & Others v. Assistant Sub
Inspector of Police (1985 KLT 484) and
Crl.R.P.No.275 of 1985. It is admitted that there
is a notification authorising the Assistant sub
Inspector of Police to exercise powers of the S.I.
of Police. In the above decisions it was held that
authorising or investing an Officer with the
powers of a superior officer is one thing and
rank is another thing, and since the Assistant S.I.
of Police is an Officer below the rank of S.I. He
was incompetent to effect a search. In the above
decisions the accused were acquitted for the
reason that seizure was illegal. As indicated
earlier, the learned single Judge before whom
this appeal came for hearing doubted the
correctness of these decisions and it was for this
reason that the matter was referred to a Division
Bench. The learned counsel for the appellant
argued that R.19 speaks of Police Officer not
below the rank of Sub Inspector and therefore
the authorisation to the Assistant Sub Inspector
by the Government to exercise the powers of Sub
Inspector will not invest the Assistant S.I. of
Police with power to effect search and seizure.
Crl.R.P.No.2115 of 2009.
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21. S.13(2) of the Interpretation and
General Clauses Act, 1125 lays down as follows:
“Where an Act confers a power or imposes a
duty on the holder of an office, as such, then,
unless the contrary intention appears the power
may be exercised and the duty shall be
performed by the holder of the office for the time
being or by a person duly appointed to act for
him or to be in charge of the powers and duties
of that office.”
The Assistant Sub Inspector has been duly
empowered to exercise all powers of Sub
Inspectors in G.O.(MS)217/73 dated 19.12.1973.
In view of sub-section (2) of S.13 of the
Interpretation and General Clauses Act, such
authorisation is sufficient to confer powers on
the Assistant Sub Inspector to exercise the
powers of seizure and search in accordance with
R.19 of the order. The provisions contained in
S.13(2) of the Interpretation and General
Clauses Act do not appear to have been brought
to the notice of the learned single Judges who
decided Kunhikannan’s case (supra) and
Crl.R.P.No.275/1985. Further even if search and
seizure are illegal that will not vitiate the
subsequent investigation, further trial and
conviction.
22. A Division Bench of this Court to which
one of us is a party (Shamsuddin J.) had occasion
to consider this aspect. Following the decisions
of the Supreme Court in Balumal Jamnadas v.
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State of Maharashtra (AIR 1975 SC 2083), State
of Maharashtra v. Natwarlal (AIR 1980 SC 593),
Dr.Pratap Singh and another v. Director of
Enforcement, Foreign Exchange Regulation and
others (AIR 1985 SC 989) and also the decision
of this Court in Assistant Collector of Central
Excise v. Wilfred Sebastian and others (1982 KLJ
670), the Division Bench held in Assistant
Collector of Central Excise v. Vasanthakumar
(1988(1) KLT 92) that illegality of search will not
affect the validity of the seizure or vitiate the
evidence collected or subsequent trial.
Unfortunately the above decisions were not
brought to the notice of the learned single
Judges who decided the cases relied on by the
learned counsel for the appellant. We are
therefore of the view that Kunhikannan’s case
and Crl.R.P.No.275 of 1985 have not correctly
laid down the law on these aspects.”
In the light of the decision of the Division Bench in Hassan’s
case, I find that the rulings in Sabu’s case and Unni’s case
are per incurium and have not correctly laid down the law.
I find that the arguments advanced by the learned counsel
for the revision petitioner is devoid of merit. The evidence
of Pw1 that at the time of arrest and seizure, the Asst.Sub
Inspector was the Station House Officer; was not even
challenged. I find no reason to disbelieve the evidence of
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Pw1 on that aspect. The Asst.Sub Inspector was exercising
powers of the Sub Inspector and he was the Police Station
Officer and as such he is empowered under Sec.31 of the
Abkari Act, read with Sec.2(o) of the Crl.P.C., to arrest and
seize the contraband. Therefore, the arrest and seizure was
no way vitiated. Even if it is assumed that the Asst.Sub
Inspector was not authorised to search and seize, the
illegality of the search would not affect the validity of the
seizure or vitiate the evidence collected or the subsequent
trial in the light of the Bench decision of this Court in
Hassan’s case which is based on the rulings of the Apex
Court referred therein.
15. The conviction under challenge is based upon
cogent evidence. Neither arrest and seizure nor the
investigation and trial are vitiated. I find no reason to
interfere with the conviction.
16. Though the trial court had awarded simple
imprisonment for one year, that was reduced to simple
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imprisonment for three months in appeal. The substantive
sentence as modified in appeal is very moderate. The fine
imposed is the minimum amount prescribed. The sentence
is not at all exorbitant or harsh. There is no room for
interfering with the sentence also.
In the result, the revision petition is devoid of merit
and accordingly it is dismissed. The revision petitioner
shall surrender before the trial court forthwith.
P.S.GOPINATHAN, JUDGE.
Kvs/-