{"id":28221,"date":"2010-03-02T00:00:00","date_gmt":"2010-03-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-k-joy-vs-state-of-kerala-on-2-march-2010"},"modified":"2016-05-04T12:23:28","modified_gmt":"2016-05-04T06:53:28","slug":"k-k-joy-vs-state-of-kerala-on-2-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-k-joy-vs-state-of-kerala-on-2-march-2010","title":{"rendered":"K.K.Joy vs State Of Kerala on 2 March, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
K.K.Joy vs State Of Kerala on 2 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.Rev.Pet.No. 2115 of 2009()\n\n\n1. K.K.JOY, S\/O.KURIYAN,KOCHOLIKKAL HOUSE,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA,REPRESENTED BY THE\n                       ...       Respondent\n\n                For Petitioner  :SRI.M.RAMESH CHANDER\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice P.S.GOPINATHAN\n\n Dated :02\/03\/2010\n\n O R D E R\n                                                        \"CR\"\n\n                  P.S.GOPINATHAN, J.\n\n                 = = = = = = = = = = = =\n                  Crl.R.P.No.2115 of 2009.\n                 = = = = = = = = = = = =\n\n           Dated this the 2nd day of March, 2010.\n\n                        O R D E R\n<\/pre>\n
     The revision petitioner is the accused in Sessions Case<\/p>\n
No.584 of 2003 on the file of the Assistant Sessions Judge,<\/p>\n
Hosdurg. He was found guilty, after trial by the learned<\/p>\n
Assistant Sessions Judge, for offence under Section 55 (a) of<\/p>\n
the Abkari Act. He was sentenced to simple imprisonment<\/p>\n
for one year and a fine of Rupees one lakh with a default<\/p>\n
sentence of simple imprisonment for three months.          In<\/p>\n
Criminal Appeal No.170 of 2006, the conviction was<\/p>\n
confirmed. But the substantive sentence was reduced to<\/p>\n
simple imprisonment for three months. Default sentence<\/p>\n
was also reduced to one month.\n<\/p>\n
     2.   Assailing the legality, correctness and propriety of<\/p>\n
the above conviction and sentence as confirmed and<\/p>\n
Crl.R.P.No.2115 of 2009.\n<\/p>\n
                            -: 2 :-<\/span><\/p>\n
modified in appeal, this revision petition was preferred.<\/p>\n
      3.    The prosecution case in brief is that on 25\/4\/2001,<\/p>\n
the Assistant Sub Inspector of Police, Chittarikal Police<\/p>\n
Station along with Head Constable and Police Constable,<\/p>\n
who were examined as PWs.1 and 2 were moving on patrol<\/p>\n
duty. At 9.45 a.m., when they reached near the bus stand<\/p>\n
complex at Chittarikkal, the revision petitioner was found<\/p>\n
carrying a bag at his head and a big shopper in his hand.<\/p>\n
Feeling suspicious, the revision petitioner was intercepted<\/p>\n
and interrogated. The revision petitioner confessed that the<\/p>\n
bag and big shopper contained packets of arrack.            On<\/p>\n
examination, the bag contained 150 packets of arrack, each<\/p>\n
containing 100 ml. of arrack. The big shopper contained<\/p>\n
200 packets, each containing 100 ml. of arrack.            The<\/p>\n
revision petitioner was arrested then and there for which<\/p>\n
Ext.P1 arrest memo was prepared. The contraband along<\/p>\n
with container was seized. Four packets each from the bag<\/p>\n
and big shopper were opened and took as samples in<\/p>\n
Crl.R.P.No.2115 of 2009.\n<\/p>\n
                            -: 3 :-<\/span><\/p>\n
bottles, which were sealed then and there. The remaining<\/p>\n
packets were taken custody as such.          Ext.P2 seizure<\/p>\n
mahazar was prepared. Returning to the Police Station, the<\/p>\n
Assistant Sub Inspector of Police registered a case as Crime<\/p>\n
No.51 of 2001. The investigation was taken over by PW6,<\/p>\n
the then Sub Inspector of Police.     After completing the<\/p>\n
investigation, a charge sheet was laid before the Judicial<\/p>\n
Magistrate of First Class-II, Hosdurg. On finding that the<\/p>\n
offence alleged is triable by a Court of Session, after<\/p>\n
complying with the requisite procedures, committed the<\/p>\n
case to the court of Session, Kasargod. From there it was<\/p>\n
made over to the Assistant Sessions Judge, Hosdurg. The<\/p>\n
learned Assistant Judge, after hearing the prosecution and<\/p>\n
the revision petitioner, a charge for offence under Section<\/p>\n
55(a) of the Abkari Act was framed. When it was read over<\/p>\n
and explained the revision petitioner pleaded not guilty.<\/p>\n
Hence, he was sent for trial.\n<\/p>\n
      4.    On the side of the prosecution, PWs.1 to 6 were<\/p>\n
Crl.R.P.No.2115 of 2009.\n<\/p>\n
                            -: 4 :-<\/span><\/p>\n
examined.      Exts.P1 to P8 and MOs.1 to 5 series were<\/p>\n
marked. When questioned under Section 313 of the Code of<\/p>\n
the Criminal Procedure, the revision petitioner denied the<\/p>\n
incriminating evidence and further stated that he had no<\/p>\n
connection with the material objects involved, and that<\/p>\n
while he was travelling in the bus, he was arrested and the<\/p>\n
case was falsely registered against him. Though revision<\/p>\n
petitioner was called upon to enter his evidence, no defence<\/p>\n
evidence was let in.      The Assistant Sessions Judge, on<\/p>\n
appraisal of the evidence, arrived a conclusion of guilt, as<\/p>\n
mentioned earlier.\n<\/p>\n
      5.    The Assistant Sub Inspector of Police who<\/p>\n
detected the crime is no more.        So he could not be<\/p>\n
examined. PW.1, the Head Constable and PW.2, the Police<\/p>\n
Constable who were accompanying the Assistant Sub<\/p>\n
Inspector of Police were examined. PWs.1 and 2 had given<\/p>\n
supporting evidence. Pw1 had also deposed that at that<\/p>\n
time the Asst.Sub Inspector was the Station House Officer.<\/p>\n
Crl.R.P.No.2115 of 2009.\n<\/p>\n
                            -: 5 :-<\/span><\/p>\n
Though      they     were subjected   to   searching   cross-<\/p>\n
examination, no material was disclosed to disbelieve the<\/p>\n
arrest and seizure deposed by them. Ext.P2 would support<\/p>\n
the evidence of PWs.1 and 2.\n<\/p>\n
      6.    PW.3 was examined as a witness to the arrest and<\/p>\n
seizure.    Though he admitted the signature contained in<\/p>\n
Ext.P2 as that of his, he denied of having witnessed the<\/p>\n
arrest and seizure. In the light of the evidence of PWs.1 and<\/p>\n
2, supported by Ext.P2, I find that the courts below had<\/p>\n
rightly appreciated the evidence of PWs.1 and 2 and arrived<\/p>\n
a conclusion that the revision petitioner was caught red<\/p>\n
handed with the contra band liquor. Sitting in revision, I<\/p>\n
fail to find any reason to diverge with the courts below on<\/p>\n
finding of facts.\n<\/p>\n
      7.    Ext.P8 would show that four sample bottles were<\/p>\n
forwarded for chemical examination. Ext.P8 would show<\/p>\n
that all the samples contained ethyle alcohol. The evidence<\/p>\n
of Pw6 coupled with Ext.P2 would show that two samples<\/p>\n
Crl.R.P.No.2115 of 2009.\n<\/p>\n
                             -: 6 :-<\/span><\/p>\n
each were collected from the bag and big shopper. Pw6 had<\/p>\n
deposed that thondies were forwarded to the Chemical<\/p>\n
Examiner and Ext.P8 is the report of the Chemical<\/p>\n
Examiner. The percentage by volume of ethyl alcohol is<\/p>\n
38.78, 39.54, 39.60 and 38.96 respectively. Ext.P8 would<\/p>\n
convincingly establish that the packets which the revision<\/p>\n
petitioner were carrying contained ethyl alcohol.      So an<\/p>\n
offence under Section 55(a) of the Abkari Act is established.<\/p>\n
      8.    The learned counsel for the revision petitioner<\/p>\n
submitted that the contraband was detected by an Asst.Sub<\/p>\n
Inspector who is not an empowered officer under Sec.4; and<\/p>\n
in that circumstance the detection and seizure of the<\/p>\n
contraband are illegal and hence the prosecution is vitiated<\/p>\n
and despite the oral evidence available, the revision<\/p>\n
petitioner is entitled to an order of acquittal.<\/p>\n
      9.    The learned counsel, in his support, had given<\/p>\n
reliance to two decisions of this Court in Sabu v. State of<\/p>\n
Kerala<\/a> [2007(4) KLT 169] and Unni v. State of Kerala<\/p>\n
Crl.R.P.No.2115 of<\/a> 2009.\n<\/p>\n
                              -: 7 :-<\/span><\/p>\n
[2009(2) KHC 661] The latter decision was rendered<\/p>\n
following the former decision. Going through the decision<\/p>\n
in Sabu’s case it is seen that the detection and investigation<\/p>\n
were conducted by the Asst.Sub Inspector of Police.         In<\/p>\n
para.11 it is held:\n<\/p>\n
        “[E]ven if he was empowered as per the
\n        provisions of S.2(o) Cr.P.C., he cannot exercise
\n        the power conferred on an Abkari Officer. On
\n        this score also, the judgment of the Trial Court
\n        has to be set aside.”\n<\/p><\/blockquote>\n
In Unni’s case, at para.5 it is held:\n<\/p>\n
        “[S]o, there is much force in the submission of
\n        the learned counsel for the accused that PW1
\n        was not an authorised officer competent to
\n        detect and investigate an offence under the
\n        Abkari Act, and as such the detection made by
\n        him was unauthorised. The accused in the given
\n        facts is entitled to the benefit of doubt since PW1
\n        was not empowered to detect and investigate the
\n        crime.”<\/p><\/blockquote>\n
      10. On the other hand, in this case, the investigation<\/p>\n
was conducted by the Sub Inspector. The learned Public<\/p>\n
Prosecutor submitted that Sec.31 of the Abkari Act<\/p>\n
empowers a Police Station Officer to search and seize a<\/p>\n
Crl.R.P.No.2115 of 2009.\n<\/p>\n
                            -: 8 :-<\/span><\/p>\n
contraband under the Abkari Act and that the search and<\/p>\n
seizure were done by the Asst.Sub Inspector in the capacity<\/p>\n
as Station House Officer. Sec.31 reads as follows:<\/p>\n
              “A Police Station Officer, has reason to
\n        believe that an offence under this Act has been
\n        committed and that the delay occasioned by
\n        obtaining a search warrant under the preceding
\n        section will prevent the execution thereof, he
\n        may, after recording his reasons and the
\n        grounds of his belief at any time by day or
\n        night, enter and search any place and may seize
\n        anything found therein which he has reason to
\n        believe to be liable to confiscation under this
\n        Act, and may detain and search and, if he
\n        thinks proper, arrest any person found in such
\n        place whom he has reason to believe to be
\n        guilty of any offence under this Act.”<\/p><\/blockquote>\n
      11. According to the learned Public Prosecutor,<\/p>\n
Section 2(o) of the Crl.P.C. defines officer in charge of a<\/p>\n
Police Station and any officer above the rank of a Constable<\/p>\n
is competent to hold the charge of the Police Station and<\/p>\n
that the Asst.Sub Inspector in this case was holding the<\/p>\n
charge of the Police Station.\n<\/p>\n
      12. A reading of Sec.2(o) Crl.P.C. would be relevant:<\/p>\n
Crl.R.P.No.2115 of 2009.\n<\/p>\n
                              -: 9 :-<\/span><\/p>\n
         “Sec.2(o). “officer in charge of a police station”
\n         includes, when the officer in charge of the
\n         police station is absent from the station-house
\n         or unable from illness or other cause to
\n         perform his duties, the police officer present at
\n         the station-house who is next in rank to such
\n         officer and is above the rank of constable or,
\n         when, the State Government so directs, any
\n         other police officer so present. “<\/p><\/blockquote>\n
      13. A combined reading of Sec.31 of the Abkari Act<\/p>\n
and Sec.2(o) Crl.P.C. would show that the Asst.Sub<\/p>\n
Inspector, who is holding charge of a Police Station, is a<\/p>\n
competent officer to search and seize the contraband. It<\/p>\n
was further submitted that the investigation in this case was<\/p>\n
conducted by Pw6, the Sub Inspector of Police and that<\/p>\n
even if it is assumed that the Asst.Sub Inspector was not<\/p>\n
authorised to search and seizure, the materials disclosed or<\/p>\n
the illegality of the search would not affect the validity of<\/p>\n
the seizure or vitiate the evidence collected or the<\/p>\n
subsequent trial. The learned Public Prosecutor, in support<\/p>\n
of the argument, canvassed my attention to the decision in<\/p>\n
Hassan v. State of Kerala<\/a> (1989(2) KLT 581).<\/p>\n
Crl.R.P.No.2115 of 2009.\n<\/p>\n
                             -: 10 :-<\/span><\/p>\n
      14. Hassan v. State of Kerala,<\/a> is a case relating to<\/p>\n
Edible Oil Seeds, Edible Oils, Vanaspati and Baby Food<\/p>\n
Dealers Licensing Order, 1975. Identical is the provision in<\/p>\n
Clause 19 of the said order. A Division Bench of this Court<\/p>\n
held that, ‘the Asst.Sub Inspector in case he was authorised<\/p>\n
to exercise the powers of a Sub Inspector, the search and<\/p>\n
seizure done by him could not be held illegal and that even<\/p>\n
if search and seizure are illegal, that would not vitiate the<\/p>\n
subsequent investigation, further trial and conviction.    A<\/p>\n
reading of paragraphs 20, 21 and 22 would be appropriate.<\/p>\n
It reads:\n<\/p>\n
              “20. Learned counsel for the appellant next
\n        contended that the Asst.Sub Inspector of Police
\n        is incompetent to seize the articles and in the
\n        circumstances the trial is illegal and conviction
\n        is liable to be set aside. Learned counsel invited
\n        our attention to Clause 19 of the Order dealing
\n        with search and seizure. It lays down that only
\n        an officer of the Civil Supplies Department not
\n        below the rank of an Asst.Taluk Supply Officer,
\n        or any Officer of the Revenue Department not
\n        below the rank of a Deputy Tahsildar, or any
\n        police officer not below the rank of Sub
\n        Inspector, or any other officer of the Government<\/p>\n
Crl.R.P.No.2115 of 2009.\n<\/p><\/blockquote>\n
                             -: 11 :-<\/span><\/p>\n
        authorised by the District Collector in this
\n        behalf, may with a view to secure compliance
\n        with the provisions of this Order or to satisfying
\n        himself that the said provisions have been
\n        complied with, has power to effect search and
\n        seizure. The learned counsel submitted that the
\n        Assistant Sub Inspector of Police is below the
\n        rank of the Sub Inspector and therefore he has
\n        no competence to effect search and seizure. In
\n        support of his contention the learned counsel
\n        invited our attention to the decisions in
\n        Kunhikannan      &   Others   v.  Assistant   Sub
\n        Inspector of Police (1985 KLT 484) and
\n        Crl.R.P.No.275 of 1985. It is admitted that there
\n        is a notification authorising the Assistant sub
\n        Inspector of Police to exercise powers of the S.I.
\n        of Police. In the above decisions it was held that
\n        authorising or investing an Officer with the
\n        powers of a superior officer is one thing and
\n        rank is another thing, and since the Assistant S.I.
\n        of Police is an Officer below the rank of S.I. He
\n        was incompetent to effect a search. In the above
\n        decisions the accused were acquitted for the
\n        reason that seizure was illegal.     As indicated
\n        earlier, the learned single Judge before whom
\n        this appeal came for hearing doubted the
\n        correctness of these decisions and it was for this
\n        reason that the matter was referred to a Division
\n        Bench.      The learned counsel for the appellant
\n        argued that R.19 speaks of Police Officer not
\n        below the rank of Sub Inspector and therefore
\n        the authorisation to the Assistant Sub Inspector
\n        by the Government to exercise the powers of Sub
\n        Inspector will not invest the Assistant S.I. of
\n        Police with power to effect search and seizure.\n<\/p><\/blockquote>\n
Crl.R.P.No.2115 of 2009.\n<\/p>\n
                             -: 12  :-\n<\/p>\n<\/p>\n
              21. S.13(2) of the Interpretation and
\n         General Clauses Act, 1125 lays down as follows:<\/p>\n
              “Where an Act confers a power or imposes a
\n         duty on the holder of an office, as such, then,
\n         unless the contrary intention appears the power
\n         may be exercised and the duty shall be
\n         performed by the holder of the office for the time
\n         being or by a person duly appointed to act for
\n         him or to be in charge of the powers and duties
\n         of that office.”\n<\/p>\n
         The Assistant Sub Inspector has been duly
\n         empowered to exercise all powers of Sub
\n         Inspectors in G.O.(MS)217\/73 dated 19.12.1973.
\n         In view of sub-section (2) of S.13 of the
\n         Interpretation and General Clauses Act, such
\n         authorisation is sufficient to confer powers on
\n         the Assistant Sub Inspector to exercise the
\n         powers of seizure and search in accordance with
\n         R.19 of the order. The provisions contained in
\n         S.13(2) of the Interpretation and General
\n         Clauses Act do not appear to have been brought
\n         to the notice of the learned single Judges who
\n         decided      Kunhikannan’s   case  (supra)    and
\n         Crl.R.P.No.275\/1985. Further even if search and
\n         seizure are illegal that will not vitiate the
\n         subsequent     investigation, further  trial  and
\n         conviction.\n<\/p>\n
              22. A Division Bench of this Court to which
\n         one of us is a party (Shamsuddin J.) had occasion
\n         to consider this aspect. Following the decisions
\n         of the Supreme Court in Balumal Jamnadas v.<\/p>\n
Crl.R.P.No.2115 of 2009.\n<\/p>\n
                               -: 13 :-<\/span><\/p>\n
         State of Maharashtra (AIR 1975 SC 2083), State
\n         of Maharashtra v. Natwarlal (AIR<\/a> 1980 SC 593),
\n         Dr.Pratap Singh and another v. Director of
\n         Enforcement, Foreign Exchange Regulation and
\n         others (AIR 1985 SC 989) and also the decision
\n         of this Court in Assistant Collector of Central
\n         Excise v. Wilfred Sebastian and others<\/a> (1982 KLJ\n<\/p>\n
         670), the Division Bench held in Assistant
\n         Collector of Central Excise v. Vasanthakumar<\/a>
\n         (1988(1) KLT 92) that illegality of search will not
\n         affect the validity of the seizure or vitiate the
\n         evidence       collected   or  subsequent    trial.
\n         Unfortunately the above decisions were not
\n         brought to the notice of the learned single
\n         Judges who decided the cases relied on by the
\n         learned counsel for the appellant.        We are
\n         therefore of the view that Kunhikannan’s case
\n         and Crl.R.P.No.275 of 1985 have not correctly
\n         laid down the law on these aspects.”\n<\/p>\n
In the light of the decision of the Division Bench in Hassan’s<\/p>\n
case, I find that the rulings in Sabu’s case and Unni’s case<\/p>\n
are per incurium and have not correctly laid down the law.<\/p>\n
I find that the arguments advanced by the learned counsel<\/p>\n
for the revision petitioner is devoid of merit. The evidence<\/p>\n
of Pw1 that at the time of arrest and seizure, the Asst.Sub<\/p>\n
Inspector was the Station House Officer; was not even<\/p>\n
challenged. I find no reason to disbelieve the evidence of<\/p>\n
Crl.R.P.No.2115 of 2009.\n<\/p>\n
                             -: 14 :-<\/span><\/p>\n
Pw1 on that aspect. The Asst.Sub Inspector was exercising<\/p>\n
powers of the Sub Inspector and he was the Police Station<\/p>\n
Officer and as such he is empowered under Sec.31 of the<\/p>\n
Abkari Act, read with Sec.2(o) of the Crl.P.C., to arrest and<\/p>\n
seize the contraband. Therefore, the arrest and seizure was<\/p>\n
no way vitiated. Even if it is assumed that the Asst.Sub<\/p>\n
Inspector was not authorised to search and seize, the<\/p>\n
illegality of the search would not affect the validity of the<\/p>\n
seizure or vitiate the evidence collected or the subsequent<\/p>\n
trial in the light of the Bench decision of this Court in<\/p>\n
Hassan’s case which is based on the rulings of the Apex<\/p>\n
Court referred therein.\n<\/p>\n
      15. The conviction under challenge is based upon<\/p>\n
cogent evidence.        Neither arrest and seizure nor the<\/p>\n
investigation and trial are vitiated.   I find no reason to<\/p>\n
interfere with the conviction.\n<\/p>\n
      16. Though the trial court had awarded simple<\/p>\n
imprisonment for one year, that was reduced to simple<\/p>\n
Crl.R.P.No.2115 of 2009.\n<\/p>\n
                            -: 15 :-<\/span><\/p>\n
imprisonment for three months in appeal. The substantive<\/p>\n
sentence as modified in appeal is very moderate. The fine<\/p>\n
imposed is the minimum amount prescribed. The sentence<\/p>\n
is not at all exorbitant or harsh.     There is no room for<\/p>\n
interfering with the sentence also.\n<\/p>\n
      In the result, the revision petition is devoid of merit<\/p>\n
and accordingly it is dismissed.     The revision petitioner<\/p>\n
shall surrender before the trial court forthwith.<\/p>\n
                              P.S.GOPINATHAN, JUDGE.\n<\/p>\n
Kvs\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-28221","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nK.K.Joy vs State Of Kerala on 2 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/k-k-joy-vs-state-of-kerala-on-2-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"K.K.Joy vs State Of Kerala on 2 March, 2010 - 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