High Court Kerala High Court

K.K.Joy vs State Of Kerala on 2 March, 2010

Kerala High Court
K.K.Joy vs State Of Kerala on 2 March, 2010
       

  

  

 
 
  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.

                 = = = = = = = = = = = =
                  Crl.R.P.No.2115 of 2009.
                 = = = = = = = = = = = =

           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

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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 Government

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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/-