KALLIANI, W/O.KELUKUTTY vs STATE OF KERALA

The appellant herein challenges the conviction and sentence against her under Section 55 (g) of the Kerala

Abkari Act (for short "the Act") in S.C 623/2008 of the

Court of Session, Kozhikode.

The prosecution case is that, at about 12.30 p.m

on 22.2.2002, at Vattomparambath within the limits of the

Chelannur Excise Range, the appellant was found

possessing 8 litres of wash meant for distillation of arrack,

contained in a plastic bucket of 10 litres capacity. The

offence was detected by a Preventive Officer of the

Chelannur Excise Range. The quantity of wash was seized

as per mahazar by the Preventive Officer at the spot of

detection, and he produced the properties before the Excise

Range Office without any delay. The accused was not

arrested on the spot because there was no woman officer in

the excise party led by the detecting officer. On the basis

of the seizure reported, another Preventive officer of the

Range registered crime and occurrence report and an

Excise Inspector conducted investigation. After

investigation, he submitted final report in court. After

complying with the procedure prescribed under the law, the

learned Magistrate committed the case to the Court of

Session from where it was made over to the learned

Additional Sessions Judge (Adhoc-I), Kozhikode for trial and

disposal.

The accused appeared before the trial court and

pleaded not guilty to the charge framed against her under

Section 55 (g) of the Act. The prosecution examined six

witnesses and proved Exts.P1 to P6 documents. The MO1

plastic bucket was also identified during trial. The accused

denied the incriminating circumstances when examined

under Section 313 Cr.P.C. She did not adduce any evidence

in defence.

On an appreciation of the evidence, the trial court

found the accused guilty. On conviction, she was sentenced

to undergo rigorous imprisonment for one year and to pay a

fine of 1 lakh by judgment dated 19.2.2009. Aggrieved by

the judgment of conviction, the accused has come up in

appeal.

When this appeal came up for hearing, the

learned counsel submitted that the factual aspects need not

be gone into because the accused is entitled for acquittal on

the legal aspect that the crime and the occurrence report in

this case was registered by an incompetent officer. If it is

really a crime registered by an incompetent officer, the

prosecution built on such crime must collapse.

Of the six witnesses examined by the

prosecution, PW3 is the preventive officer who detected the

offence, and PW6 is the Excise Inspector who investigated

the case and submitted final report. PW1 is only the Village

Officer who prepared the scene plan and PW5 is the

Preventive Officer who registered the crime and occurrence

report. PW2 examined as an independent witness turned

hostile. PW4 is the Excise Guard, who assisted the

Preventive Officer in the process of detection.

Ext.P2 crime and occurrence report was

registered by a Preventive Officer of the Excise Range. Of

course, Preventive Officers are authorised to detect

offences, but they are not authorised to register crimes or to

investigate crimes or to submit final report. Only detection

powers are given to such category of officers by the

Government Order issued in 1967 as S.R.O 234/1967 and

also the Government Order of 2009 issued as SRO 361/2009

in suppression of the earlier order. In no circumstance, can

a preventive officer register crimes under the Act. This

Court has consistently held in so many decisions that only

the Excise Officials specifically authorised by the

Government under Section 4 of the Kerala Abkari Act can

discharge the various functions under the Act. In this case,

the detection was made by a competent officer, and

investigation was also made by another competent officer.

He submitted final report also in court. Those things will not

justify or rectify the illegality otherwise committed in the

registration of crime. The crime in this case was registered

by an incompetent officer. On this ground itself, the

accused is entitled for acquittal. In the above circumstances,

the factual aspects need not be probed into.

In the result, this appeal is allowed. The appellant is

found not guilty of the offence under Section 55 (g) of the

Act, and she is acquitted of the said offence in appeal under

Section 386 (b) (i) Cr.P.C . Accordingly, the conviction and

sentence against her in SC 623 of 2008 of the court below is

aside. The appellant will stand released from prosecution

and the bail bond, if any, executed by her will stand

discharged.