A.V. Thomas @ Thomachan vs State of Kerala

S.S. Satheesachandran, J.—Challenge in the revision is against the concurrent verdict of guilty rendered against the accused for the offence u/s 55 (a) of the Kerala Abkari Act hereinafter referred as the Act. The accused faced trial for the offence u/s 55 (a) of the Act on a report filed by the Sub Inspector of Police, Rajapuram. He pleaded not guilty of the offence. The learned Assistant Sessions Judge, after trial, found him guilty of the offence and, thereupon, he was convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,00,000/- with default term of simple imprisonment for one more year. In appeal the Sessions Judge confirmed the conviction but modified the sentence reducing the term of rigorous imprisonment to one year with fine of Rs. 1,00,000/- with default simple imprisonment for one year. Aggrieved by the conviction and sentence, questioning its legality, propriety and correctness, the accused has preferred this revision.

The prosecution case in a nut shell is thus:

PW1, head constable of Rajapuram police station, accompanied by another Police constable was conducting abkari raids within the jurisdiction of his Station on 7.8.97. While so, at about 5.30 p.m, PW1 noticed the accused carrying a plastic bag at Malakallu town beside an Electric shop. The accused got perplexed seeing the police constables. Suspicion generated by his conduct, PW1 approached and examined the bag possessed by him. The bag contained 16 packets each containing 100ml. of Karnataka arrack, for the possession of which the accused had no authority or licence. Four packets from the contraband detected was collected as sample. Samples and residue were seized into custody preparing P3 mahazar. The accused was arrested, and, later, enlarged on bail. P2 crime was registered over the seizure of the contraband and its investigation was conducted by PW5, another head constable of the station. After completion of the investigation PW5 Sub Inspector of police laid the charge indicting the accused for the offence punishable u/s 55 (a) of the Abkari Act. After committal of the case and the case made over to Assistant Sessions Judge, Hosdurg for trial the accused appeared before that court in response to summons. After complying with the formalities the learned Assistant Sessions Judge framed charges against the accused for the offence u/s 55(a) of the Abkari Act, to which he pleaded not guilty. Prosecution examined PW1 to PW6, got marked Exts. P1 to P5 and identified MO1 to MO3 to prove its case. The accused maintained his innocence when questioned u/s 313 of the Cr. P.C. He contended that the case had been foisted falsely against him at the instance of one Kunjumon who had animosity towards him, by influencing the police. Though such a defence was canvassed, no evidence in support thereof was adduced.

The learned Assistant Sessions Judge after appreciating the materials produced found the accused guilty of the offence committed and he was thereupon convicted and sentenced as indicated above. In the appeal preferred by the accused, the Sessions Judge confirmed the conviction but reduced the sentence as stated above.

I heard the learned Counsel for the accused and also the learned Public Prosecutor. Conviction of the accused is assailed by the learned Counsel contending that prosecution has not let in any legal evidence to prove the guilt of the accused for the offence charged against him. The accused has been convicted solely on the basis of the evidence of the Police Constables, PW1 and PW2, without any corroboration from independent source over the alleged seizure of the contraband from his possession, submits the counsel. The evidence of PW1 and PW2 is mutually conflicting and contradictory, is the further submission. Detection of the Abkari offence, seizure of the contraband and arrest of the accused by PW1, a head constable, and investigation of the crime registered over such seizure by another head constable, it is submitted, is perse illegal as both of them are not empowered under the Act to exercise the powers of the Abkari Officer. So much so, the learned Counsel contends that from the inception till the charge was laid against the accused, imputing a grave offence under the Abkari Act, there was grave illegality, as the above police officers who exercised powers of the abkari officer had no authority to function so. Conviction and sentence imposed against the accused, it is submitted, are liable to be set aside.

I have perused the records of the case with reference to the submissions made by the learned Counsel for the accused. I find there is considerable force in the submissions of the counsel that detection of the offence, seizure of the contraband and arrest of the accused and, later, investigation of the crime, both, conducted by officers below the rank of Sub Inspector of police are tainted with illegality. No doubt, if the detection and seizure was accidental by an officer below the rank of Sub Inspector of Police that by itself will not vitiate the prosecution of the offender involved in an Abkari offence provided the investigation of the crime had been conducted by an empowered officer. The facts and circumstances involved in the case would show that a police party consisting of PW1 and PW2 detected the offence by chance and without prior information. As police officers they were expected to nab the culprit and seize the contraband when they detected an abkari offence by chance. But once seizure of contraband, arrest of the offender and registration of the crime over the offence detected by chance is completed, further steps in investigation can be done, only by an abkari officer, envisaged u/s 4 of the Act. Abkari officer notified by the Government u/s 4 of the Act alone are competent to exercise the powers conferred under various provisions of the Act. The Government has published a notification as S.R.O. No. 321/96 authorising 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 to exercise the powers of the Abkari Officers conferred under the various sections of the Act named in the notification. The notification reads as follows:

S.R.O. No. 321/96: In exercise of the 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 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.

The notification is clear that other than the Revenue Officers of and above the rank of Deputy Collectors only police officers of rank of Sub Inspector of Police and above, that too in charge of Law and Order and working in the General executive branch of the Police Department alone, are empowered to function as abkari officers. There cannot be any doubt that PW1 head constable who detected the offence, effected seizure and arrested the accused, and also, PW5, another head constable who conducted the investigation of the crime registered over the seizure of the contraband, both, were not empowered to exercise the powers of abkari officer. Even if the detection of the offence, seizure of contraband and arrest of the accused, which was accidental, are condonable the investigation of the crime registered over the abkari offence carried by a police officer below the rank of Sub Inspector of Police is inexcusable. Charge in the case was laid by PW6 Sub Inspector of Police, an empowered officer under the notification. But that cannot wipe off the illegality emanating from the investigation, which is conducted wholly by an unauthorised officer, not empowered to exercise the functions of an abkari officer. In Sabu v. State of Kerala 2004 (1) KLT 169, this Court has held that even an Assistant Sub Inspector of Police has no authority to detect and effect seizure of the contraband involved in abkari offence. So on this above solitary ground itself the conviction and sentence imposed against the accused for the offence u/s 55(a) of the Abakari Act is liable to be set aside. I do so.

In the result, the revision is allowed and the conviction and sentence imposed against the accused for the offence u/s 55(a) of the Abkari Act are set aside. Accused is acquitted of the offence. Fine amount, if any, remitted by the accused shall be refunded to him.