Kelan vs State of Kerala

S. Siri Jagan, J.—The petitioner is the second accused in S.C. No. 342/2001 before the 2nd Assistant Sessions Judge, Kozhikode Division. He was prosecuted along with another accused for offences punishable under Sections 55(a) and 55(g) of the Abkari Act. The prosecution case was that on 21.12.1999 at about 12 noon, in the court-yard of the 1st accused''s house, at about 600 meters south-west of Akampuzha junction, at Thazhokkod-Kariapuzha road, at Koodaranhi amsom of Kozhikode taluk, the accused were found manufacturing illicit liquor using wash and arrack and the police party of Thiruvambadi recovered the implements from the accused, whereby the accused committed the offences charges against them. The prosecution examined PWs 1 to 10 and marked Exts. P1 to P9 as also MOs 1 to 6. The defence did not adduce any evidence. After trial, the Assistant Sessions Judge convicted the accused and sentenced them to undergo simple imprisonment for one year each for the offences and to pay fine of Rs. 1 lakh for each offence, in default of which to undergo simple imprisonment for another two months. The petitioner challenged the same before the Sessions Court, Kozhikode in Cr. A. No. 373/2002. The Sessions Court confirmed the conviction and sentence imposed by the Assistant Sessions Judge. The petitioner is challenging the judgments of the courts below. The petitioner raises two contentions. The first is that u/s 31 of the Abkari Act, a police officer can make a search without a search warrant only after recording his reasons and grounds for his belief that the delay occasioned by obtaining a search warrant will prevent the execution of the search itself. In this case, admittedly, no search memo was prepared regarding the grounds for the belief of the police officer who conducted the search as to why the obtaining of a search warrant would prevent the execution of the search. Therefore, in view of the decision of the Supreme Court in Suraj v. Excise Inspector, 2001 (1) KLT 169 (SC), the search itself is vitiated and therefore the prosecution also has to be held to be without jurisdiction. The second contention is that the petitioner had nothing to do with the premises where the alleged offences were being committed and even going by the evidence of the Police Officer, who conducted the search, the petitioner was only standing at the scene of occurrence and he had nothing in his hand. That means the prosecution has proved only that he was an on-looker and nothing has been brought out on record to prove that the petitioner was really involved in the commission of the crime. In support of the contention, the petitioner relies on the decision of the Supreme Court in Nellikunnel Jose Vs. State of Kerala, , wherein the Supreme Court held that the mere presence of the accused near a lorry transporting illicit liquor will not lead to the ultimate conclusion that that person committed an offence u/s 55(a) of the Abkari Act. The petitioner therefore submits that there is no evidence on record to prove that the petitioner was actually involved in the crime and therefore the petitioner could not have been validly convicted for the offences alleged.

On the other hand, the learned Public Prosecutor would contend that a mere irregularity in the search u/s 31 will not render the prosecution invalid, which has been held so by this Court in Joy v. State of Kerala, 2010 (3) KLT 20. Regarding the second contention, the learned Public Prosecutor would contend that the Police Officer, who conducted the search, gave evidence as PW1 and he gave evidence to the fact that both the accused persons were found distilling illicit liquor. Therefore, there is evidence to show that the petitioner was also involved in the crime and therefore there is no merit in the second contention of the petitioner also.

I have considered the rival contentions in detail.

Section 31 of the Abkari Act reads thus:

Power to certain Abkari and Police Officers to search houses, etc., without warrant:- Whenever the Commissioner of Excise or any Abkari Officer not below such rank as may be specified by the Government in this behalf or any Police Officer not below the rank of Sub Inspector or a Police Station Officer, has reason to believe that an offence under this Act has been committed and that the delay occasioned by obtaining a search warrant under the preceding section will prevent the execution thereof, he may, after recording his reasons and the grounds of his belief at any time by day or night, enter and search any place and may seize anything found therein which he has reason to believe to be liable to confiscation under this Act, and may detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of any offence under this Act.

Of course, that section itself stipulated the conditions under which a police officer can, without a search warrant, conduct a search in respect of an abkari offence. But the irregularity in the search cannot vitiate the prosecution as such, if there is sufficient evidence adduced before the court regarding the commission of the offence. I am also not satisfied that the decision in Suraj''s case (supra) lays down any rule that if the search is conducted in violation of Section 31, the prosecution itself would be void. The relevant portion of the decision reads thus:

On June 3, 1997, Ss. 31 and 50 were amended and S. 50A was inserted in the Act. S. 31 as amended in 1997 is extracted hereunder:

Power to certain abkari and police officers to search houses, etc. without warrant:- Whenever the Commissioner of Excise or any Abkari Officer not below such ranks may be specified by the Government in this behalf or any Police Officer not below the rank of Sub Inspector or a Police Station Officer has reason to believe that an offence under this Act has been committed and that the delay occasioned by obtaining a search warrant under the preceding section will prevent the execution thereof, he may, after recording his reasons and the grounds of his belief at any time by day or night, enter and search any place and may seize anything found therein which he has reason to believe to be liable to confiscation under this Act and may detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of any offence under this Act.

From a compassion of unamended S. 31 and the amended S. 31, it is clear that under the unamended provision the power to enter and search any place at any time by day or night, was confined to a case where any of the specified officers including the Excise Inspector had reason to believe that any of the following offences had been committed - viz., Ss. 8, 15C, 55, 55B, 56A, 57, 58, 58A and 58B which obviously did not include S. 57A.

In any given case, whether the Excise Inspector had reason to believe that an offence was committed and that offence was one of the specified offences are questions of facts which must be established in each case on evidence. Should the prosecution fail to prove these facts, the entry and search of any place per se would be illegal and so also the collection of samples by him and consequently the prosecution of the alleged offender will equally be illegal....

I am of opinion that the latter sentence of the quoted portion does not specifically relate to the irregularity in the search u/s 31, but relate to the specified offences mentioned in the Section. Apart from that, very recently, the Supreme Court has held that a defect in investigation by the police officers will not vitiate the prosecution, if cogent evidence is adduced to prove the offence committed by the accused (See Dayal Singh & amp; others v. State of Uttaranchal, 2012 (2) KLD 443 (SC)). In fact, a learned Judge of this Court has also held so in the decision in Joy''s case (supra), in paragraph 13 of which, it has been held thus:

A combined reading of S. 31 of the Abkari Act and S. 2 (o) Crl.P.C. would show that the Asst. Sub Inspector, who is holding charge of a Police Station, is a competent officer to search and seize the contraband. It was further submitted that the investigation in this case was conducted by Pw 6, the Sub Inspector of Police and that even if it is assumed that the Asst. Sub Inspector was not authorised to search and seizure, the materials disclosed or the illegality of the search would not affect the validity of the seizure or vitiate the evidence collected or the subsequent trial. The learned Public Prosecutor, in support of the argument, canvassed my attention to the decision in Hassan v. State of Kerala (1989 (2) KLT 58).

As such, I am not satisfied that the first ground raised by the petitioner is sufficient to acquit the petitioner.

But, I find considerable merit in the second contention of the petitioner. PW 1 is the Sub Inspector of Police, who conducted the search. In chief examination, he said that, when I reached near the house premises of A1 Sankaran Nair, I found the accused persons distilling illicit liquor. But, in cross examination, he specifically stated thus:

A2 was seen near the fire when distillation was going on. There was nothing in his hand.

As such, the evidence of PW 1 does not prove that he had found A2 actually involved in the commission of the offences alleged against him. All what is proved by him is that the petitioner was an on-looker at the scene where the illicit distillation of arrack was going on. In the decision of Nellikunnel Jose''s case (supra), the Supreme Court has stated thus in paragraph 4:

In the impugned order, the High Court itself recorded a finding that the petitioner-accused was seen near the lorry and the presence of the revision petitioner near the lorry, therefore, has been proved. On this finding, it is difficult to sustain the ultimate conclusion that the offence u/s 55(a) of the Act has been committed. Consequently, the conviction and sentence against the appellant cannot be sustained.

Therefore, going by that decision, the mere finding of the presence of the accused near the scene of occurrence cannot be conclusive proof of his commission of the offence as such. Therefore, I am of opinion that the prosecution has not succeeded in proving that the petitioner was actually involved in the commission of the offences alleged against him. At any rate, he is entitled to the benefit of doubt.

Therefore, I set aside the conviction of the petitioner by the courts below of the offences alleged against him and acquit him giving him the benefit of doubt. The bail bond would stand cancelled. The Criminal R.P. is disposed of as above.