K.V.KRISHNAN, S/O.CHANDU Vs EXCISE INSPECTOR, BADIDKA RANGE, KASARAGOD DISTRICT

The revision petitioner herein challenges the conviction and sentence against him under Section 55(a) of the Kerala Abkari Act (hereinafter

referred to as ""the Act"") in S.C.No. 33 of 1999, of the Court of Session, Kasaragod. He faced prosecution in the court below on the allegation

that at about 7.00 p.m. on 13.08.1997, at Karadukka within the Badiadukka Excise Range, he was found possessing 4 litres of Indian Made

Foreign Liquor contained in 25 bottles of 180 ml capacity. The offence was detected by an Assistant Excice Inspector of the Badiadukka Excise

Range. He arrested the accused on the spot, and seized the liquor bottles as per a mahazar. He produced the accused and the properties at the

Excise Range Office where the Excise Inspector registered the crime and occurrence report on the next day. The Excise Inspector investigated the

case, and submitted final report in court.

The accused appeared before the learned Assistant Sessions Judge, Kasaragod, and pleaded not guilty to the charge framed against him. The

prosecution examined four witnesses, and proved Exts.P1 to P6 documents in the trial court. The MO1 and MO2 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.

On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment

for one year, and to pay a fine of Rs. 1 lakh.

Aggrieved by the judgment of conviction dated 29.08.2000, the accused approached the Court of Session, Kasaragod, with Crl.A.No. 244 of

2000. In appeal, the learned Additional Sessions Judge (Adhoc-II), Kasaragod, confirmed the conviction and sentence, and accordingly,

dismissed the appeal. Now the accused is before this Court in revision, challenging the legality and propriety of the conviction and sentence.

On hearing both sides, and on a perusal of the materials, I find that there are some legal infirmities in this case, the benefit of which must go to

the accused.

This Court has consistently held in so many decisions that the various functions under the Kerala Abkari Act can be discharged only by the

officers specifically appointed and authorised as Abkari Officers by the Government under Section 4 of the Act. In terms of Section 4 of the Act,

the Government of Kerala issued a notification in 1967 as S.R.O. No. 234/1967 authorising various officers of the Excise Department to discharge

the functions under the Act. Assistant Excise Inspectors were not given any power under the said notification. Such category of officers were given

powers only in 2009 as per another notification issued as S.R.O.No. 361 of 2009, dated 08.05.2009. PW1 is the Assistant Excise Inspector who

detected the offence. He had no competence or authority at that time to detect offences under the Act. On this ground itself, the prosecution is

bound to collapse.

This Court has also consistently held that the forwarding note produced in the court must contain the specimen of the seal affixed on the sample.

The forwarding note in this case does not contain the specimen of the seal. The mahazar also does not show what seal was affixed on the sample.

When cross examined, PW1 stated that he had not affixed any seal or label on the remaining liquor bottles. This means that the properties

produced in this case cannot be identified as those seized from the hands of the accused. The detection was made at about 7.00 p.m. on

13.08.1997. But the crime and occurrence report was registered by the Excise Inspector only on the next day. There is no reason for this delay.

There is no explanation why crime was not registered immediately on the production of the accused and the properties at the Excise Range Office.

The benefit of this infirmity also must go to the accused.

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

accordingly, he is acquitted of the said offence in revision. The conviction and sentence against the revision petitioner in S.C. No. 33 of 1999 of the

trial court, confirmed in appeal by the Court of Session, Kasaragod, in Crl.A.No. 244 of 2000, will stand set aside.