Allowed

Rajesh v. State of Kerala

Kerala HC5 Jan 2016CRL.A/1788/2004

Case brief

AI extract

What is this about?

The High Court allowed an appeal against conviction under the Abkari Act for possession of arrack. The judgment held that an Assistant Sub Inspector of Police was not a competent officer under the Abkari Act to register the case or conduct investigation in the absence of a specific delegation notification. Consequently, the conviction was unsustainable.

What did the court decide?

Conviction and sentence under Section 55(1) of the Abkari Act set aside; accused set at liberty.

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

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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TUESDAY, THE 5TH DAY OF JANUARY 2016/15TH POUSHA, 1937

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CRL.A.No. 1788 of 2004 ( )

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AGAINST JUDGMENT IN S.C.500/99 OF THE ADDL. DISTRICT & SESSIONS JUDGE (ADHOC)II, KOLLAM

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APPELLANT(S)/ACCUSED 1 & 2::

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1. RAJESH, S/o.GOPINATHAN PILLAI, PEROOR VEEDU, EZHUKONE CHERRI, EZHUKONE.

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2. JOHNSON, S/O.PAPPACHAN, LAIJU BHAVAN, AMBALAKKARA CHERRI, UMMANNOOR.

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BY ADV. SRI.K.SASIKUMAR

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RESPONDENT(S)/RESPONDENT::

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

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BY PUBLIC PROSECUTOR SRI. N. SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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STK

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P.D. RAJAN, J.

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Crl.Appeal No.1788 of 2004

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---------------------------------------------Dated this the 5^th of January 2016

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JUDGMENT

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This appeal is preferred against the conviction and sentence of the Additional Sessions Judge (Adhoc) II, Kollam under Section 55(a) and (i) of the Abkari Act. The charge against them was that on 20.8.98 at 5.30 pm, the Assistant Sub Inspector East Kallada Police Station found the accused 1 and 2 in possession of 5 litres of arrack for sale on the southern side of Vavoor purayidom, Moonumukku, Thazhom Muri, East Kallada village. They were arrested and contraband articles were seized. After completing investigation, Sub Inspector of Police, Kallada laid charge before Judicial First Class Magistrate-I, Kollam, from there, the case was committed to Sessions Court for trial.

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The prosecution examined PW1 to PW5 and

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marked Exts.P1 to P4 and MO1 to MO5(a) to (n) were marked. The incriminating circumstances brought out in

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Crl.Appeal No.1788 of 2004 2

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evidence were denied by the accused while questioning him. He examined DW1. The learned Sessions Judge convicted the accused and sentenced to undergo rigorous imprisonment for 4 years each and fine of Rupees One lakh each under Section 55(1) of the Abkari Act. No separate sentence was imposed under Section 55(a) of the Abkari Act. Being aggrieved by that he preferred this appeal.

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The learned counsel appearing for the appellants contended that the detecting officer was not empowered as per the Abkari Act. Therefore, there is no validity for such seizure, moreover he was not examined as a witness. When there is no legal evidence in connection with the alleged offence, hence the appellants are entitled to get the benefit of doubt.

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The learned Public Prosecutor has no dispute with the argument advanced by the appellants.

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According to Section 5 of the Abkari Act, the Government may from time to time make rules prescribing the powers and duties under the Abkari Act.

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Crl.Appeal No.1788 of 2004 3

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As per Section 2 of the Abkari Act, 'Abkari Officer' means the Commissioner of Excise or any Officer or other person lawfully appointed or invested with powers under Sections 4 or 5. Accordingly, Government issued notification under Section 4 of the Abkari Act (G.O.(P)No.69/96/TD dt.29-31996), which reads as follows:

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“In exercise of the powers conferred by Section 4 of the Abkari Act, (Act 1 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 purposes 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. “

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The powers of Abkari Officers are specifically

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mentioned in the Abkari Act. Therefore, it is clear that Assistant Sub Inspector of Police is not an Abkari Officer and he has no power to exercise and perform as an Abkari Officer. In this context, I have scrutinised the evidence of Sub Inspector of Police, who conducted the investigation

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Crl.Appeal No.1788 of 2004 4

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in this case. According to PW5, on 20.08.98 he was the Sub Inspector of Kallada Police Station. But on that day, Asst. Sub Inspector registered crime 136/98 under Section 55(a) and (i) of the Abkari Act. Accordingly he arrived at the place of occurrence and conducted the investigation. He identified the signature in Ext.P1, P2 and P3, which was prepared by the Asst. Sub Inspector. The seized articles were forwarded to the chemical examiner's laboratory through court by Assistant Sub Inspector of Police and Ext.P4 is the report. But he produced the accused before court. He identified MO2 to MO5 series. and completed the investigation. While cross examination he admitted that he never recorded the statement of Asst. Sub Inspector, who detected the offence and registered the case. The materials objects were produced before court by the Asst. sub Inspector and he never verified those material objects.

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A close scrutiny of PW5, it is clear that while he was working as Sub Inspector at East Kallada Police Station, a non-empowered officer detected the offence

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Crl.Appeal No.1788 of 2004 5

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and conducted major portion of the investigation. When a non-empowered officer without complying the statutory formalities provided under the Abkari Act registered the case and proceed with the investigation, what is the impact of the investigation has to be considered by this court. This court in several decisions held that Asst. Sub Inspector is not an empowered officer for conducting any investigation or registering any case. As per the Section 3 (2) of the Abkari Act, the officers are vested with powers under Section 4 or 5 are the competent officers. Under Section 4(b) of the Abkari Act, the Government has the power to appoint officers to perform the acts and duties mentioned in Sections 40 to 53 of the Abkari Act. Under Section 4(e), the Government has power to appoint subordinate officers of such class with such designations and confer power. No such notification has been produced by the prosecution to show that Asst. Sub Inspector was delegated with power by the State Government under Section 4(e) of the Abkari Act. A close analysis of Section 4(d) and (e), the Government has

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Crl.Appeal No.1788 of 2004 6

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to delegate power to the subordinate officers to act as Abkari Officers and take action under Section 40 to 53. Since no such notification has been issued, Asst. Sub Inspector acted as Officer-in charge of the Police Station is incompetent. A combined reading of Section 4 (a) to (g) with Section 3(2) of the Abkari Act, the Sub Inspector cannot delegate his power as stated under Section 2 of Code of Criminal Procedure and proceed with the investigation.

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This court in Sabu V. State of Kerala 2007 (4)

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KLT 169 held that Asst. Sub Inspector of Police is not an officer to detect an investigation under the Abkari Act. PW3, who was present at the time of occurrence deposed that on the date of incident, Asst. Sub Inspector got information that some persons were conducting sale of arrack near moonnumukku and PW3 arrived at the place of occurrence with Police party, on seeing the Police party, the persons present there ran away. One person was found there carrying 10 litres of arrack and one glass and identified the name of the other person. They intercepted

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Crl.Appeal No.1788 of 2004 7

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him and arrested him after taking the sample. The contraband articles were seized after preparing Ext.P1 mahazar. MO1 is the cannas ,MO2 is the glass and the currency notes found there were marked as MO3 series. Reaching at the Police Station, they registered Ext.P2 FIR. PW4 also reiterated the same version given by PW3 and not extracting the entire evidence of this witness. PW1 and PW2 are the independent witnesses who attested Ext.P1, did not support the prosecution case.

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When Asst. Sub Inspector is not an empowered officer to conduct an investigation, the conviction of the appellants under Section 55(a) and (i) of the Abkari Act is unsustainable in law. The trial court failed to appreciate the correct legal position and convicted them. In the result, the conviction and sentence passed by the trial court under Section 55 (1) of the Abkari Act is set aside and accused are set at liberty and this appeal is allowed.

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STK

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Sd/- P.D. RAJAN, JUDGE //TRUE COPY//

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P.A. TO JUDGE

Rajesh v. State of Kerala

Case brief

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Rajesh v. State of Kerala

Case brief

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What did the court decide?

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