Allowed

Dinesh Chandran @ Dinesh v. State of Kerala

Kerala HC2 Nov 2020CRL.A/241/2005

Case brief

AI extract

What is this about?

This Criminal Appeal challenged a conviction under the Abkari Act where the investigation was conducted by an Excise Inspector from a different jurisdiction. The High Court held that investigation by an unauthorized officer vitiated the prosecution, allowing the appeal and setting aside the conviction.

What did the court decide?

The conviction and sentence are set aside; the appellant is set at liberty; the bail bond is cancelled.

Dinesh Chandran @ Dinesh Vs State of… — Constitutional and Fundamental Rights | Kerala HC (2020)

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CRL.A.No.241 OF 2005

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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.V.KUNHIKRISHNAN

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MONDAY, THE 02ND DAY OF NOVEMBER 2020 / 11TH KARTHIKA, 1942

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CRL.A.No.241 OF 2005

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AGAINST THE JUDGMENT IN SC 149/2004 DATED 10-11-2004 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM

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APPELLANT/2ND ACCUSED:

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DINESH CHANDRAN @ DINESH S/O.PRABHAKARAN PILLAI, PAZHAVELIKKAKATHU HOUSE, KARATTUPALLYKARA, PERUMBAVOOR VILLAGE.

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BY ADVS.

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SRI.K.RAMAKUMAR (SR.) SRI.RUSSEL VARGHESE

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RESPONDENT/STATE:

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

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2 THE CIRCLE INSPECTOR OF EXCISE PERUMBAVOOR.

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SRI.K.B.UDAYAKUMAR, SR.PP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 2-112020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

CRL.A.No.241 OF 2005

JUDGMENT

Dated this the 2nd day of November 2020

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The appellant is the second accused in S.C No.149/2004 on the file of the Additional Sessions Judge (Adhoc-II), Ernakulam. The above case is chargesheeted against the appellant and another alleging the offence punishable under Section 55(a) of the Abkari Act.

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The prosecution case is that on 17.7.2000 at about 12.30 pm., the Excise Inspector and his party were conducting patrol duty in Perumbavoor town and when they had inspected the lorry bearing registration No.T.N.21A 1359 in Harihara Ayyer Road, the accused in the company of another accused by name Titus Lobo was found transporting 3920.760 litres of Indian made foreign liquor without any authorisation. It is therefore, alleged by the prosecution that the accused and his coaccused has committed the offence under Section 55(a) of the Abkari Act.

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To substantiate the case the prosecution examined PW1 to PW6. Exts.P1 to P12 are also marked on the side of the prosecution. The 1^st accused was absconding and thereafter the appellant, who is the 2^nd accused alone faced trial. This Court obtained a report from the lower court about the case pending against the 1^st accused. As per letter dated 23.10.2000, the lower court informed that the case against the 1^st

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CRL.A.No.241 OF 2005

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accused is even now pending as L.P No.7/2005.

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The trial court after going through the entire oral and documentary evidence came to the conclusion that the accused committed the offence under Section 55(a) of the Abkari Act and he is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused is directed to undergo simple imprisonment for another three months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.

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Heard the learned counsel for the appellant and the learned Public Prosecutor.

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The counsel for the appellant raised only one single point. According to the counsel, the entire prosecution case in this case is vitiated because an unauthorised person investigated the case. According to the counsel, the arrest and seizure in this case was within the jurisdiction of Excise Range, Perumbavoor. But the part of the investigation in this case was conducted by PW4, the Excise Inspector, Kunnathunadu. According to the counsel, the Excise Inspector, Kunnathunadu has no jurisdiction or authorisation to conduct investigation in this case. The counsel relied the judgment of this Court in Balachandran v. State of Kerala (2020(3) KHC 697) and Ravi v. State-S.I of Police, Meppadi (2018(5) KHC 352). The

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CRL.A.No.241 OF 2005

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counsel submitted that in the light of the above judgment, the appellant is entitled acquittal.

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The Public Prosecutor submitted that huge quantity of Indian made foreign liquor is seized from the appellant. This Court may not interfere with the conviction and sentence imposed by the lower court on technical grounds in this case. The Public Prosecutor submitted that the final report is filed by an officer, who is authorised as per the Abkari Act.

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The point for consideration in this appeal is whether the appellant committed the offence under Section 55(a) of the Abkari Act.

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Admittedly, the alleged arrest of the accused and seizure of the contraband article in this case was happened within the jurisdiction of Excise Range, Perumbavoor. It is now well settled that an abkari officer can detect and arrest the accused in an abkari case. But the investigation can be conducted only by an authorised officer. This Court in Balachandran ’s case (supra) was observed like this.

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“12. A reading of the proviso to the above notification, it is clear that, concerning Sections 31 and 34 of the Act, there is no limit of jurisdiction within the Kerala State for the Abkari and other Department Officers named therein, but all persons arrested and all seizures made thereunder shall without delay be made over to the Excise Officer possessing local jurisdiction. Section 31 of the Abkari Act deals with Abkari and Police officers' power to search houses, etc. without a warrant. Section 34 of the Act deals with the power to arrest without warrant in any public place, thoroughfare or open space other than a dwelling house. Actually, Ext.P8 is issued only in accordance with the above proviso to the notification. In Ext.P8, the power is given to Aluva Circle, Aluva Range, and Angamaly Range of the Excise Department for conducting a special check at

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CRL.A.No.241 OF 2005

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Moothakunnam toll for curbing effectively Indian made foreign liquor seconds and other illicit articles. Accordingly, PW1 conducted the detection and arrest of the accused in this case. After arrest and seizure, he produced the accused and the contraband articles along with the vehicle before the Excise Officer having local jurisdiction over Moothakunnam Toll, and he is charge witness No.11 in this case. There is no defect in the arrest, seizure of the contraband article by PW1 from Moothakunnam toll junction, even though, it is not an area within the jurisdiction of PW1 in the light of the proviso to S.R.O.No.234/67. Therefore, the arrest and seizure of the property are proved in this case with the evidence of PW1. Of course, PW2 and PW3 turned hostile to the prosecution. But, they admitted their signature in Ext.P1 seizure mahazar. Simply because, the independent witnesses turned hostile after admitting their signature in the seizure mahazar, the entire arrest and seizure will not vitiate. Therefore, here is a case where the prosecution is able to prove that as per Ext.P1 seizure mahazar, PW1 seized the article mentioned in it along with the appellant and his vehicle. It is also proved that PW1 produced the accused, seized material along with the vehicle before the jurisdictional Excise Range Officer, who is charge witness No.11.

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S.R.O.No.234/67, which is extracted above, will show that the investigation and final report under Section 50 of the Abkari Act can be submitted by all the Officers of the Excise department, not below the rank of Excise Inspectors within the areas for which they are appointed. ‘Abkari Officer’ is defined as per Section 3(2) of the Abkari Act which is extracted hereunder:

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

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S.R.O. No.234/67 was issued by the Government as per Section 4 of the Kerala Abkari Act. As per the above notification, all officers of the Excise Department not below the rank of Excise Inspector are authorized to perform the acts and duties mentioned in Sections 40 to 53 within the area for which they are appointed. Similarly, the Commissioner of Excise, the Joint Commissioner of Excise, Deputy Commissioners of Excise and all Assistant Commissioners of Excise to be Abkari officers under their respective denominations for the purpose of Sections 31,32,34,35,38,39,53,59,67 and 67A of the Abkari Act and to discharge of the duties conferred and imposed on Abkari officers in the Sections aforesaid. The Commissioner of Excise and the Joint Commissioner of Excise are having jurisdiction throughout the State. But, Deputy Commissioners of Excise and the Assistant Commissioners of Excise have jurisdiction only within the area for which they are appointed. Circle Inspectors of Excise, Excise Inspectors, attached to the circle and Excise Inspectors in charge of Ranges will be Abkari officers under their respective denominations for the purpose of Sections 31,32,34,35,38,39,53

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CRL.A.No.241 OF 2005

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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 within their respective jurisdiction. Similarly, clause 11,12 and 13 of SRO No.234/67 give powers to different officers within their respective jurisdiction or within the area for which they are appointed.

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Therefore, it is clear that all Excise Department officers not below the rank of Excise Inspector can file a final report under Section 50 only if the detection is within the area for which they are appointed. Clause (8) of SRO No.234/67 is clear about that. Of course, in the proviso to SRO No.234/67, it is stated that, with reference to Sections 31 and 34 of the Act, there shall be no limit of jurisdiction within the Kerala State for the Abkari and other Department Officers named therein; but all persons arrested and all seizures made thereunder shall, without delay, be made over to the Excise Officer possessing local jurisdiction.”

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In Ravi ’s case also this Court considered the same point.

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Which is extracted hereunder:

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“14. In this case, PW4 is the Sub Inspector of Police, Meppadi. Definitely, he is the “Abkari Officer” within the territorial jurisdiction of the Meppadi Police Station. PW3 is the Sub Inspector of Police, Kalpetta, who has investigated the case as per the direction of the S.I. of Police, Meppadi, who has no power to designate PW3 as the Abkari Officer to investigate the offence committed within the limits of the Meppadi Police Station. Here, PW3, the Abkari Officer of the Kalpetta Police Station, has conducted investigation of the abkari offence allegedly committed within the territorial limits of Meppadi Police Station. He has no power to exercise the power of the Abkari Officer outside the limits of the Kalpetta Police Station. There is no provision either in the Abkari Act or no notification was issued by the Government to confer jurisdiction to the Abkari Officers outside the jurisdictional limit. Needless to say that the Government of Kerala alone is empowered to appoint an Abkari Officer. “

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In the light of the above authoritative judgment of this Court, I think, the appellant is entitled benefit of doubt. Admittedly, PW4, is an Excise Inspector, Kunnathunadu Excise Range. He is not

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CRL.A.No.241 OF 2005

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authorised to investigate the case. If an unauthorised person investigated the case, in the light of the above judgments, the prosecution is unsustainable. It is true that huge amount of Indian made foreign liquor was seized from the appellant without any authority. But simply because huge quantity is seized, this Court cannot ignore the above judgment and the statutory provisions. It is the duty of the department to go through the sections in the Abkari Act before entrusting investigation in abkari cases. If an unauthorised person investigate the case, it will go to the route of the case. Unless there is authorisation from the government, an Excise Inspector of another excise range cannot investigate the case. I think, the appellant in this case is entitled benefit of doubt.

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Hence, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 10.11.2004 in S.C No.149/2004 of the Additional Sessions Judge (Adhoc-II), Ernakulam is set aside. The appellant is set at liberty. The bail bond, if any, executed by the appellant is cancelled.

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Sd/-

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P.V.KUNHIKRISHNAN

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JUDGE

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Dinesh Chandran @ Dinesh v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dinesh Chandran @ Dinesh v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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