Allowed

Rajan v. State

Kerala HC8 Aug 2018Crl.Rev.Pet/501/2007

Case brief

AI extract

What is this about?

In a criminal revision, the High Court of Kerala quashed the conviction for possession of Indian Made Foreign Liquor. The Court held that the accused is entitled to acquittal because the offence was detected and reported by excise officials lacking statutory powers under the relevant notification, and due to procedural infirmities.

What did the court decide?

Revision petitioner acquitted; conviction and sentence set aside; petitioner released from prosecution.

Rajan Vs State — Property and Title | Kerala HC (2018)

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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.UBAID

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WEDNESDAY, THE 8TH DAY OF AUGUST 2018 / 17TH SRAVANA, 1940

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Crl.Rev.Pet.No. 501 of 2007

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------------------------------JUDGMENT IN CRA 247/2005 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA DATED 31-10-2006 JUDGMENT IN SC 272/2000 of ASSISTANT SESSIONS COURT, SULTHAN BATHERY DATED 26-11-2005

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REVISION PETITIONER(S)/APPELLANT/ACCUSED :-

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RAJAN, AGED 50, S/O.PADATHU RAMANKUTTY, MANTHOTTAM, PADINHARATHARA.

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BY ADV.SRI.PHILIP M.VARUGHESE

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RESPONDENT(S)/RESPONDENT/COMPLAINANT :-

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

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BY PUBLIC PROSECUTOR SRI.C.K.PRASAD

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-08-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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P.UBAID, J.

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Crl.R.P. No.501 of 2007

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Dated this the 8^th day of August 2018

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O R D E R

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The revision petitioner herein challenges the conviction and sentence against him under Section 55(a) of the Kerala Abkari Act (the Act) in S.C. No.272/2000 of the Court of Session, Wayanad. He faced prosecution before the learned Assistant Sessions Judge, Sulthan Bathery on the allegation that at about 5.45 p.m. on 28.10.1997, he was found possessing some quantity of Indian Made Foreign Liquor contained in a bottle of 750ml capacity, and another bottle of 375ml capacity. The offence was detected by the Circle Inspector of Excise attached to the Excise Special Squad, Wayanad. He produced the accused and the properties at the Excise Range Office, where, a Preventive Officer registered the crime and occurrence report. After investigation, the Excise Inspector submitted final report in court. The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him.

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The prosecution examined eight witnesses, and proved Exts.P1 to P8 documents in the trial court. The MO1 to MO3

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Crl.R.P. No.501 of 2007

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properties were also identified during trial. The accused denied the incriminating circumstances, when examined under Section 313 Cr.P.C. He did not adduce any evidence in defence.

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On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for two years, and to pay a fine of `1,00,000/-. Aggrieved by the judgment of conviction dated 26.11.2005, the accused approached the Court of Session, Wayanad with Crl.A. No.247/2005. In appeal, the learned Additional Sessions Judge (Adhoc)-II, Kalpetta confirmed the conviction, but modified and reduced the jail sentence to rigorous imprisonment for six months. Now, the accused is before this Court in revision, challenging the legality and propriety of the conviction and sentence.

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On a perusal of the materials in this case, I find that the important functions under the Act were discharged by incompetent excise officials. This court has consistently held in so many decisions that the various functions under the Act can be discharged only by the officers specifically authorised and appointed by the Government under Section 4 of the Act. In

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Crl.R.P. No.501 of 2007

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terms of Section 4 of the Act, the Government of Kerala issued a notification in 1967 as SRO 234/1967, by which, the different categories of excise officials of the Regular Excise Wing were given powers under the Act. Members of Special Squads like Excise Special Squad, or Excise Enforcement and Anti Narcotic Special Squad were not given powers under the said Notification. Such categories of excise officials got powers under the Act only in 2009, as per the Notification issued as SRO 361/2009 in suppression of the earlier notification. Members of Special Squads were not competent to detect offences as per the Notification of 1967. The detection in this case was made on 28.10.1997. Of course, there is a proviso to the Notification that when an offence is detected by an excise official beyond his territorial limits, he will have to report the fact at the concerned excise range. But this Court has explained that the said proviso applies only to the categories authorised to discharge the functions under the Notification.

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5 . The crime and occurrence report in this case was registered by a preventive officer. Of course, under the 1967 Notification, Preventive officers were authorised to detect

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Crl.R.P. No.501 of 2007

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offences, but they were not authorised to register crimes, or investigate crimes under the Act, or to submit final report. Even claiming to be in charge of the Excise Inspector, the Preventive Officers cannot discharge such functions. For such category of officers to discharge functions, there must be a specific authorisation or appointment by the Government under Section 4 of the Act. Thus, I find that this is a case based on a crime and occurrence report registered by an incompetent excise official, and he registered the crime on the basis of the detection made by another incompetent excise official. On these two grounds, the accused is entitled for acquittal.

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6 . This Court has settled the position that the copy of the forwarding note produced in court must contain the specimen of the seal affixed on the sample for the proper identification of the sample produced in court. But the Ext.P4 forwarding note in this case does not contain the specimen of the seal affixed on the sample. This Court has also settled that the properties seized by the excise official will have to be produced in court without delay. The detection in this case was made on 28.10.1997. The Ext.P5 property list will show that the properties were produced before

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Crl.R.P. No.501 of 2007

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the court on 5.11.1997. The prosecution has no explanation for the delay. It is not known in whose custody the properties were till 5.11.1997. These are also infirmities affecting the prosecution case.

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In the result, this revision petition is allowed. The revision petitioner is found not guilty of the offence under Section 55(a) of the Act, and he is acquitted of the said offence in revision. Accordingly, the conviction and sentence against him in S.C. No.272/2000 of the court below will stand set aside, and the revision petitioner will stand released from prosecution.

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Sd/- P.UBAID JUDGE

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//TRUE COPY//

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P.A. TO JUDGE

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Jvt/14.8.2018

Rajan v. State

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Rajan v. State

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