Allowed

Chandra Babu v. State of Kerala

Kerala HC15 Mar 2016CRL.A/1725/2004

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the appeal against conviction under the Abkari Act for possessing arrack. The Court held that an Assistant Sub Inspector of Police was not an authorized Abkari Officer under the relevant government notification. Consequently, the investigation and the final report were illegal, rendering the trial court's conviction and sentence liable to be set aside. The appellan

What did the court decide?

Conviction and sentence of the trial court are set aside; the appellant is acquitted and set at liberty.

Chandra Babu Vs State of Kerala — Cheque Dishonour | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶4

TUESDAY, THE 15TH DAY OF MARCH 2016/25TH PHALGUNA, 1937

¶5

CRL.A.No. 1725 of 2004 ( )

¶6

AGAINST THE JUDGMENT IN SC 1009/2002 of ADDITIONAL DISTRICT & SESSIONS JUDGE, FAST TRACK(ADHOC)II,THIRUVANANTHAPURAM DATED 25-09-2004

¶7

(CRIME 216/2000 OF MEDICAL COLLEGE POLICE.CP 29/2001 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM.)

¶8

APPELLANT(S)/ACCUSED:

¶9

CHANDRA BABU, S/O.CHELLAPPAN PUTHEN VEEDU, CHETHI, MAVARATHALAKONAM DESOM, ULLOOR VILLAGE, THIRUVANANTHAPURAM DIST.

¶10

BY ADVS. SRI.P.S.VASAVAN PILLAI SRI.MATHEW.M.N. (LEGAL AID COUNSEL)

¶11

RESPONDENT(S)/COMPLAINANT:

¶12

STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

¶13

R1 BY PUBLIC PROSECUTOR SRI. N. SURESH.

¶14

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON

¶15

15-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

acd

'C.R.'

P.D. RAJAN, J.

Crl.Appeal No.1725 of 2004

¶20

Dated this the 15^th day of March, 2016

¶21

JUDGMENT

¶22

This appeal is preferred by the accused against the

¶23

conviction and sentence in S.C.No.1009/2002 of Additional

¶24

District and Sessions Judge, Fast Track (Adhoc) No.II, Thiruvananthapuram u/s.55(a) of the Abkari Act. The charge against the appellant is that on 23.7.2000 at 3.45 p.m., the appellant was found in possession of 4 ½ litres of arrack at Mavarthalakonam by the Assistant Sub Inspector of Police,

¶25

Medical College Police Station. He was arrested and the contraband articles were seized, after preparing a mahazar, reaching at the Police Station, he registered a crime. After completing investigation, Sub Inspector of Police, Medical College

¶26

laid charge before additional Chief Judicial Magistrate,

¶27

Criminal Appeal No.1725/2004 2

¶28

Thiruvananthapuram. Subsequently, it was committed to Sessions Court, Thiruvananthapupram from there it was made over to Additional Sessions Court, Fast Track CourtII.

¶29

During trial, prosecution examined five witnesses

¶30

and marked Exts.P1 to P7. MO1 to MO3 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1. The learned Additional Sessions Judge convicted him and sentenced to imprisonment for 1 ½ years and fine of 1 lakh, in default simple imprisonment for₹ three months. Being aggrieved by that, the accused preferred this appeal.

¶31

There was no representation for the appellant, this Court issued notice to the appellant through C.I. of Police, Medical College Police Station to ensure the presence of the appellant before this Court. There was no response

¶32

Criminal Appeal No.1725/2004 3

¶33

from him. Adv. M.N. Mathew, the legal aid counsel

¶34

represented for the appellant. I heard both sides.

¶35

According to Section 4(d) of the Abkari Act, the Government may, by notification in the Gazette, appoint officers to take action under Sections 40 to 53 of the Abkari Act. Any subordinate officers may be appointed with such designation, powers and duties under this Act from time to time as the Government may think fit. Section 5 of the Abkari Act prescribing the powers and duties under this Act to be exercised and performed by Abkari Officers of several classes and regulating the delegation by the Government or by the Commissioner of Excise of any powers conferred by this Act of exercised in respect of Abkari Revenue under any law for the time being in force. As per S.R.O.No.321/96 dated 29.3.1996, the Government of Kerala

¶36

appointed all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working

¶37

Criminal Appeal No.1725/2004

¶38

¶39

in the General executive branch of the Police Department

¶40

was designated as Abkari officers as per Section 5 of the

¶41

Abkari Act, which reads as follows:

¶42

“ S.R.O.No.321/96. - In exercise of powers conferred by section 4 of the Abkari Act, I of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective Jurisdiction for the purpose of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the sections aforesaid.

¶43

This notification shall come into force with immediate effect.” Explanatory Note.- The Government have decided to abolish all arrack shops in the State of Kerala from 1-4-1996. As per G.O. (MS) No.26/96.TD dated 14-2-1996, Government have announced the new Excise Policy in the year 1996-97. In order to implement the Government policy effectively the Government have decided to empower the Police Officers to register cases against violation of Excise Laws as per G.O.(MS) No.32/96/TD dated 26-2-1996.

¶44

Criminal Appeal No.1725/2004 5

¶45

In the high level meeting of the Officers of the Excise Police and Revenue Departments convened by the Honourable Chief Minister of Kerala on 17-3-1996, it has been decided to invest the Police Officers, and Revenue Officers with power of Abkari Officers to register, investigate and prosecute all offences coming under the Abkari Act. In order to carry out the above decision a notification under Section 4 of the Abkari Act 1 ot 1077 has to be issued declaring all Police Officers of and above the rank of Sub Inspector of Police in charge of law and and working in the General Executive branch of Police Department and all Revenue Officers of and above the rank of Deputy Collectors to exercise all the powers and to discharge all the duties mentioned in the sections specified in the notification.”

¶46

The report of abkari officer u/s 50 of the Abkari

¶47

Act confer jurisdiction to a competent Magistrate to take cognizance. According to S. 50(1), every investigation into the offence under this Act shall be completed without unnecessary delay and S.50 (2) says as soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward it to a Magistrate, empowered to take

¶48

cognizance of the offence on a police report, which is a

¶49

Criminal Appeal No.1725/2004 6

¶50

report in accordance with sub-s.(2) of S.173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974). A close

¶51

reading of the Section shows that the Magistrate can take cognizance only on the basis of a report filed by the Abkari Officer. An Abkari Officer is defined under sub-s.(2) of

¶52

S.3, which reads as follows:

¶53

'Abkari Officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Ss.4 or 5.'

¶54

Government by notification dated 29.3.1996 authorized all police officers above the rank of Sub Inspector of Police to discharge all the duties conferred on an Abkari Officer. In this context I can say Assistant Sub Inspector of Police is not an Abkari Officer as defined under the Act.

¶55

The occurrence was deposed by PW5, who was

¶56

the Asst. Sub Inspector of Police, Medical College Police

¶57

Station. The evidence of PW5 shows that on 23.7.2000 at

¶58

3.45 p.m., while he was conducting patrol duty and reached

¶59

Criminal Appeal No.1725/2004 7

¶60

at Oodumavarathala, he got information that the appellant was conducting sale of arrack, immediately, he proceeded through Amaizhanjan road and arrived at the place of occurrence, at that time, the appellant was found carrying a glass and a cannas and four others were found standing near him. On seeing the Police party, they ran away, but the appellant was intercepted by the police and inspected the cannas, in which detected 4 ½ litres of arrack and a glass in his hand. The appellant was arrested, after preparing Ext.P1 mahazar. Mo1 is the cannas and MO2 is the glass and another cannas found at the place of occurrence was marked as MO3. MO1 to MO3 were taken into custody and affixed seal, reaching at the Police Station, he registered a crime. Ext.P2 is the FIR. He prepared a forwarding note and property list. Ext.P3 is the property list. The articles were produced before Court. The sample was sent over to the chemical examiner's lab. Ext.P4 is the chemical examination

¶61

Criminal Appeal No.1725/2004 8

¶62

result. Exts.P5 to P7 were marked at the time of

¶63

examination of PW5. He completed the investigation, but the final report was filed by the Sub Inspector, Rajendran,

¶64

who was not examined in this case. Even though PW5 deposed so, he has not stated as to who took the sample from the seized article.

¶65

PW4 supported the evidence of PW5 and deposed

¶66

that he accompanied PW5 at the time of patrol duty. He

¶67

identified MO1 to MO3, but he has not deposed about the taking of sample. The independent witness PW1 to PW3 did not support the seizure of MO1 to MO3 from the possession of the appellant. PW3 stated that he did not see the seizure and did not know the alleged seizure. PW2, who is residing near the place of occurrence did not see the seizure and he denied the signature in the seizure mahazar. PW1, who is an independent witness, denied the signature in the seizure mahazar. Analysing the oral and documentary

¶68

Criminal Appeal No.1725/2004

¶69

¶70

evidence, it is found that there is no independent

¶71

corroboration to the alleged seizure.

¶72

8. A Division Bench of this Court in Subash v. State

¶73

of Kerala [2008 (2) KLT 1047] held as follows:

¶74

“None of the provisions in the Abkari Act gives power to any authority to issue such notification. Even Cr.P.C. does not contain any such provision conferring on the Government the power to issue notification conferring power of an officer to any other inferior officer under S.36, when only a superior officer is to exercise power of the officer in charge of a police station. Further when it specifically states that Abkari Officer must be a police officer above the rank of Sub Inspector and that a police officer below the rank of Sub Inspector of Police cannot be termed as the Abkari Officer. Irregularity in investigation is different from lack of power to initiate prosecution. S.50 of the Abkari Act says that as soon as the investigation into the offences under this Act is completed, the abkari Officer shall forward to the Magistrate empowered to take cognizance of the offence on a police report a report in accordance with the offence on the basis of a report by an officer not authorized under law. The Magistrate has no power to take out cognizance of the case on the report of an officer other than an Abkari Officer and it will go to the root of the matter. In this connection we also refer to S.199 (1) and S.461(d) of Cr.P.C. An officer other than Abkari Officer as defined in the Act cannot file a report even if investigation is conducted by an Abkari Oficer. When a report by a specifically empowered officer is a condition precedent for taking

¶75

Criminal Appeal No.1725/2004

¶76

¶77

cognizance of an offence, trial on a report by Assistant Sub Inspector of Police is void. Lack of total jurisdiction for taking cognizance of an offence other than specially empowered officer is not an irregularity covered under Chapter XXXV of Cr.P.C.”

¶78

The power of Abkari officers or empowered officers to deal with the offences under the Abkari Act are specifically mentioned in the Abkari Act. Therefore, they have to investigate such offences according to the provisions of that Act alone. When a special Act empowers any category of officers to conduct investigation, it is presumed that investigation can be conducted only by such class of officers alone and not by an ordinary police officer mentioned in the Cr.P.C. This statutory provisions mentioned u/s.4 of the Abkari Act shows that the ordinary police officers vested with the power of investigation cannot conduct a parallel investigation in terms with the Abkari Act. Therefore, any investigation conducted by a non-empowered officer or any officer lower than the rank of the police department or any

¶79

Criminal Appeal No.1725/2004 11

¶80

class or designation or any officer or designation not

¶81

empowered u/s.4 shall presume that they have no such power to conduct investigation. There is no provision in the Abkari Act to approve such illegal investigation by a nonempowered officer.

¶82

In this case, the investigation was conducted by a non-empowered officer, who is Asst. Sub Inspector of Police, Medical College, Thiruvananthapuram. The above detection and investigation made by PW5 was against the Government notification issued vide SRO No.321/1996 dated 29.03.1996. Therefore, only the notified officer u/s.4 and 5 of the Abkari Act is competent to conduct investigation and file a final report. Therefore, the cognizance taken by the Magistrate on the basis of illegal report amounts to an illegality, since Asst. Sub Inspector of Police is not notified as an Abkari Officer. Therefore, the detection of the offence, filing of final report and the cognizance taken by

¶83

Criminal Appeal No.1725/2004 12

¶84

the Magistrate are illegal. Therefore, the conviction of the

¶85

trial Court on the basis of the illegal report is liable to be set aside.

¶86

In the result, the conviction and sentence passed by the trial Court are set aside and the accused is acquitted

¶87

and set at liberty.

¶88

P.D. RAJAN, JUDGE.

¶89

acd

Chandra Babu v. State of Kerala

Case brief

What is this about?

What did the court decide?

Chandra Babu v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K.M.Subair Vs State of Kerala

Sailesh @ Sailesh Kumar @ Raj Vs the State of Kerala

Nazar @ Nachu Nazar Vs Circle Inspector

Rajan @ Pichil Rajan Vs State of Kerala

Sulochana Vs State of Kerala

Kelan Vs State of Kerala