IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1879 of 2003()
1. SUBRAHMANIYAN, S/O. GANAPATHY,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.PADAYATTEE YELDO
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :24/02/2010
O R D E R
(C.R)
V.K.MOHANAN, J
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Crl. Appeal No. 1879 of 2003
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Dated 24th Day of February, 2010
JUDGMENT
This appeal is at the instance of the sole accused in
S.C.No.71/2002 of the Court of Addl.District and
Sessions Judge (Adhoc 1), Thodupuzha, who challenges
his conviction and sentence under Section 55 (a) of the
Abkari Act (for short, ‘the Act’ only)
2. The prosecution case is that on 14.6.99 at 3
P.M the accused was found in possession of 3 litres of
arrack in a plastic can at Vattappara junction at a place
called Pothamedu. On the basis of the said allegation,
crime No.8/99 of Devikukulam Excise Range was
registered. After investigation, a final report was filed
in the Court of Judicial First Class Magistrate,
Devikulam, whereupon C.P.No.3/2001 was initiated
and by order dated 6.10.2001, the learned Magistrate
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committed the case to the Sessions Court, Thodupuzha
where the case was instituted as S.C.No.71/2002, which
was made over to the court of Assistant Sessions Judge,
but subsequently, it was transferred by the Sessions
Court to the trial court for disposal. During the
course of trial, PWs 1 to 3 were examined on the side of
the prosecution and Exts.P1 to P5 were marked as
documentary evidence. M.O-1 material object was also
identified and marked. The defence’s stand was total
denial. No evidence was adduced from the side of the
defence. Finally, on the basis of the evidence and
materials on record, the trial court found that the accused
is guilty of the offence under Section 55 (a) of the Act and
accordingly he is sentenced to undergo rigorous
imprisonment for a period of three months and to pay a
fine of Rs.1,00,000/- (one lakh) with a default sentence of
simple imprisonment for three months. It is the above
judgment and order of conviction and sentence
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challenged in this appeal.
3. I have heard Sri Padayattee Yeldo, the learned
counsel appearing for the appellant and also the learned
Public Prosecutor.
4. The learned counsel vehemently argued that the
judgment of the trial court is absolutely illegal, improper
and irregular and liable to be set aside. Though several
factual grounds are taken in the memorandum of appeal,
during the submissions the learned counsel confined his
main argument to the competency and jurisdiction of
PW1 to effect the seizure and arrest of the appellant/
accused. In support of the above argument, the counsel
invited my attention to Section 70 of the Act and
submitted that no notification has been issued by the
Department or the Government conferring the requisite
power on the Assistant Excise Inspectors.
5. The point raised by the counsel assumes prime
importance and as the same is capable to shake the very
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basis of the prosecution case, I am of the opinion that
the said point can be considered as the first issue in this
matter.
6. The learned counsel for the appellant
emphatically submitted that PW1, being the Assistant
Excise Inspector, has no powers under Sections 40 to 53
of the Act by virtue of Section 4(d) of the above Act. It is
also his contention that there is no notification or
Government Order, conferring such powers on Assistant
Excise Inspector.
7. On the other hand, learned Public Prosecutor
submitted that the Government has issued notification
conferring powers upon the excise officials including the
Assistant Excise Inspectors. The learned Public
Prosecutor submitted that when SRO Nos.233/67 and
234/67 were issued, vide G.O.MS. No.356/67/Rev., dated
10th August 1967, the post of Assistant Excise Inspector
was not created in the Excise Department and, therefore,
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in the said notifications, the powers and duties of
Assistant Excise Inspector were not mentioned. It is the
further submission that the post of Assistant Excise
Inspector was created with effect from 10.10.1985, and
the powers and duties of Assistant Excise Inspectors
were fixed and assigned only with effect from 12.10.88
vide G.O.(MS) 142/88 dated 12.10.88. The learned Public
Prosecutor took me through the said Government Order
and he made available to me a copy of the same for
perusal. It is the further contention of the learned Public
Prosecutor that the post of “Assistant Excise Inspector”
will come in between the posts of “Excise Inspector” and
“Preventive Officer” and therefore, by virtue of their
ranking itself, and especially, in the light of the
notification SRO 234/67, they are also authorised to
discharge the functions and duties that assigned to Excise
Inspectors, Preventive Officers and also to the Excise
Guard. Hence, according to the learned Public
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Prosecutor, the seizure and arrest effected by PW1, the
“Assistant Excise Inspector”, is in accordance with the
powers conferred upon him and therefore, there is no
illegality or lack of jurisdiction.
8. In the light of the arguments advanced by the
learned counsel for the appellant and the learned Public
Prosecutor, the question to be considered is whether the
Assistant Excise Inspector is an authorized officer as
envisaged by Section 4(d) and Section 70 of the Abkari
Act. In order to consider the above question, the facts
and circumstances involved in this case, acquire
relevance, which I shall state briefly. As stated earlier,
the allegation is that the appellant/accused was found in
possession of three litres of arrack at about 3 PM on
14.6.99 when PW1 and party were on patrol duty,
especially, when the jeep in which they were travelling
reached at Vattappara junction, they saw the accused
coming from the opposite direction holding one plastic
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can and, on suspicion, the accused was intercepted and
PW1, the Assistant Excise Inspector, inspected the can
and found that the can contains three litres of liquor
which, on smelling and tasting, identified as arrack. Thus,
the accused was arrested and Ext.P1 mahazar was
prepared and M.O-1 can which contained the arrack and
the contraband article were seized. Thereafter PW1 and
party returned to the excise office and registered Ext.P2
crime report. Accordingly, accused as well as the
contraband article were produced before the Judicial First
Class Magistrate, Devikulam. The property was produced
as per Ext.P3 property list. Ext.P4 was also filed before
the court with a request to forward the sample for
chemical analysis. Ext.P5 is the chemical analysis report,
thus obtained. PWs 2 and 3 are the independent
witnesses examined to prove the seizure and arrest, but
they turned hostile. The only evidence available is that of
the deposition of PW1 and the documents such as Exts.P1
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to P5. When PW1 was examined, he had deposed before
the court during the chief examination itself that on
14.6.99 he was in the Devikulam Excise Range office
working as “Assistant Excise Inspector”. He had also
deposed in terms of the prosecution case and through him
Ext.P1 seizure mahazar was marked. Besides that, Ext.P2
crime report, Ext.P3 property list, Ext.P4 forwarding note
and Ext.P5 Chemical Analysis report were also got
marked through him. MO1 was also identified and
marked through PW1. During cross examination, he had
stated that no superior officer was with him and he was in
charge of the range. Absolutely, there is no evidence as
to who conducted the investigation and who prepared
final report/complaint and filed it in the court on
conclusion of the investigation.
9. Sections 3(2) and 3(6) of the Act define the
“Abkari Officer” and “Abkari Inspector” respectively.
According to Section 3(2), “Abkari Officer” means the
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Commissioner of Excise or any officer or other person
lawfully appointed or invested with powers under Sections
4 or 5. “Abkari Inspector” means an officer appointed
under section 4 clause (d). Section 4(d) says that the
Government may, by notification in the Gazette, may
appoint officers, to perform the acts and duties mentioned
in Sections 40 to 53 inclusive of this Act. Section 70 of
the Act specifically deals with conferring of powers and
making of appointments, which reads as follows:
“70. The conferring of powers
and making of appointments :- All
notification and orders conferring powers,
imposing duties and making appointments
under this Act may respectively refer to
the persons concerned specially by name
or in virtue of their office or to classes of
officials generally by their official titles,
and all courts shall take judicial notice
thereof”
10. In this juncture, it is apposite to consider
Section 50 which says that report of Abkari Officer
gives jurisdiction to a competent Magistrate. Sub-section
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2 of Section 50 says:
” (2). As soon as investigation into the
offences under this Act is completed, the
Abkari Officer shall forward a Magistrate,
empowered to take cognizance of the
offence on a police report, a report in
accordance with sub-section (2) of section
173 of Code of Criminal Procedure, 1973
(Central Act 2 of 1974″. (emphasis supplied)From Section 50, it is crystal clear that the court can take
cognizance only upon the report field by an “Abkari
Officer” on completion of the investigation as per the
provisions of the Act. In the present case, absolutely,
there is no evidence as to who conducted the investigation
and who filed the final report as contemplated under
section 50 of the Act.
11. According to PW1, at the time of the detection
of the offence, he was working as “Assistant Excise
Inspector” in the Devikulam Excise Range Office. Though
in paragraph 5 of the impugned judgment, it is stated that
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PW1 was the Excise Range Inspector, Devikulam, but in
the appendix to the same judgment, showing the witness
schedule, PW1 is shown as one Mr.M.K.Janardhanan and
in the bracket it is shown as (AEI). So there is no scope
for any dispute that the officer, who detected the crime
and seized contraband article and arrested the accused,
was PW1 who was working as “Assistant Excise
Inspector” of the Devikulam range at the relevant time.
Item No.8 of the notification, i.e.S.R.O 234/67 is
relevant, which reads as follows:
“In exercise of the powers conferred
by Section 4 of the Abkari Act, 1 of 1077
and of all other powers hereunto enabling
and in supersession of the previous
notifications on the subject, the
Government of Kerala hereby appoint the
officers mentioned in column (1) of the
Schedule to exercise the powers and
perform the duties specified in that column
with jurisdiction over the areas specified
against each in column (2) of the said
schedule, namely:-
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Schedule
Officers and their powers Local jurisdiction
and duties (2)
(1)
xx xx xx xx xx xx xx xx xx
8. All officers of the Excise Department Within the areas for which they are
not below the rank of Excise Inspectors – appointed”
to perform the acts and duties mentioned
in sections 40 to 53 inclusive of the Act.
(emphasis supplied)
Further details in the notification show as to which of the
category of the officers of the department will come under
the definition of “Abkari Officers”. It is also relevant to
note that in the said notification, officers appointed as
“Excise Inspectors”, “Circle Inspectors”, “Preventive
Officers”, and “Excise Guards” were given specific powers
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and authorities. The “Assistant Excise Inspectors” were
not given such powers. Public Prosecutor submitted that
at the time of issuing SRO 234/67, there was no post of
“Assistant Excise Inspector” and that is why that category
of officers is not mentioned in the said SRO and it is
further submitted by the learned Public Prosecutor that
subsequently, the post of “Assistant Excise Inspectors”
was created during the year 1985 and with effect from
12.10.1988, the “Assistant Excise Inspectors” were also
authorised to perform the duties of Excise Inspectors. In
support of the above submission, the learned Public
Prosecutor, after making available to me a copy of G.O
(MS) 142/88, Taxes Department dated 12.10.88,
submitted that the duties and responsibilities of the
“Assistant Excise Inspectors” in the Excise range is the
“same” as those of the “Excise Inspectors”. It is also the
submission of the Public Prosecutor that by virtue of the
rank of “Assistant Excise Inspectors” above the rank of
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“Preventive Officers”, it is only proper and reasonable to
conclude that the “Assistant Excise Inspectors” have also
powers as that are enjoyed or conferred upon the
“Preventive officers”.
12. I am unable to accept the above contention. In
view of Sections 3(2) and 3(6), there must be officers
termed as “Abkari Officers” and “Abkari Inspectors” and
especially, in view of Section 4(d), officers shall be
appointed to perform the acts and duties mentioned in
sections 40 to 53 inclusive of the Abkari Act. Section 70
specifically says that “all notification and orders
conferring powers, imposing duties and making
appointments under this Act may respectively refer to the
persons concerned specially by name or in virtue of their
office or to classes of officials generally by their official
titles, and all courts shall take judicial notice thereof”.
(emphasis supplied). In the present case, no such notifications
are produced and the materials which referred to above
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do not show that the “Assistant Excise Inspectors” are
conferred with powers that contemplated under sections
40 to 53.
13. On a reading of Section 50, it is crystal cleat that
the court can take cognizance only upon a valid report
filed by “competent officer after investigation of the case
as provided under Section 50 of the Act”. Section 40
deals with procedure on arrest and seizure. Section 41
deals with disposal of persons arrested. Going by various
provisions of the Act, it can be seen that vide powers are
given to “Abkari Officers” and “Abkari Inspectors”.
Besides that, section 50 is more particular that, only
“report of Abkari Officer” gives jurisdiction to a
competent Magistrate and only on such report, the
Magistrate can take cognizance. In the present case,
PW1 who was working as an Assistant Excise Inspector
was not given powers under the above provisions to
effect seizure and investigation. He was also not
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competent due to absence of conferment of powers
under section 50, to file “Report” or complaint. A trial
conducted based upon a report of an incompetent officer
will render as “non est.” A Division Bench of this Court in
the decision in Varkey v. State of Kerala (1993 (1) KLT
72), held:
“The consequence is that Excise Inspectors
who filed the complaints in these cases had no
authority to file such a complaint. The result is
that the Sessions Court or the Special Court had
no jurisdiction to take cognizance of the same.
They could not have framed charge against the
accused. The charge framed by them was without
jurisdiction. The trial which followed the said
charge must be treated as non est, because it was
done without jurisdiction. If the trial was one
held without jurisdiction, it cannot end in either
conviction or acquittal. The court below ought to
have discharged the accused under S.227 of the
Code of Criminal Procedure”.
A Full Bench of this Court, as per its decision in Abdul
Rehman v. State of Kerala (1995(1) KLT 234(FB), has
affirmed the decision of this Court in Varkey’s case
(1993(1) KLT 72) (cited supra). In another Division
Bench decision in Prabhakaran v. Excise Circle
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Inspector (1992 (2) KLT 860), it is held:
“Learned Public Prosecutor informed us,
after ascertaining the position from the
Government that no officer has been authorised
by the State Government as per the aforesaid
clause(d). If so, the respondent has no authority
to file a complaint for the offence under the NDPS
Act. The corollary is that the Court of Sessions or
Special Court has no jurisdiction to take
cognizance of the offence under the NDPS Act on
such complaint. The charge framed against the
petitioner is hence without jurisdiction.”
In the present case, the above provisions, and other
materials referred to above would show that PW1 who
was working as “Assistant Excise Inspector” was not a
competent and authorised officer as contemplated by the
provisions of the Abkari Act, especially, Section 4 (d) and
Section 70 of the Act and therefore, the seizure and arrest
made by PW1 was without authorization and jurisdiction.
14. It is to be noted that only three witnesses were
examined by the prosecution out of which PWs 2 and 3
were independent witnesses and they turned hostile. PW1
has not stated as to who conducted the investigation and
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who filed the report. If that be so, in the absence of such
details, the committal court has committed a grave
mistake in taking cognizance. Since the committal
proceedings and taking cognizance itself were without
jurisdiction, the trial court ought not have proceeded with
such trial, especially, when PW1 has no power for seizure
and arrest as contemplated by the Act.
15. In the light of the above discussion and the
materials considered and the provisions referred above,
the judgment of the trial court is illegal, improper and
irregular. The trial itself rendered as non-est.
Consequently, the conviction and sentence imposed
against the appellant/accused is liable to be set aside
and he is entitled to get discharged from the case
registered against him.
In the result, this appeal is allowed setting aside
the conviction and sentence imposed against the appellant
vide judgment dated 16.10.2003 in SC No.71/02 of the
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Court of Additional Sessions Judge (Adloc-I), Thodupuzha,
and discharging the appellant/accused in the above case.
The bail bond, if any, executed by the appellant/accused is
cancelled and he is set at liberty. The amount of
Rs.12,500/- deposited by the appellant towards the
compliance of the condition imposed by this Court at the
time of suspending the sentence is directed to be
refunded to the appellant/accused forthwith on his proper
request.
V.K.MOHANAN
JUDGE
kvm/-
.