Manikantan @Krishnakumaran vs State Of Kerala

The appellant was convicted and sentenced for the offence under Section 55(g) r/w.Section 8(2) of the Kerala Abkari Act (for short, 'the Act'). He

assails the judgment in this appeal.

The prosecution case was that on 20.07.1999 at about 10.00 p.m., the accused was found brewing illicit arrack at his residence in Ottapalam in

violation of the provisions of the Act. PW1, who was at that point of time the Excise Inspector of the Palakkad Excise Enforcement and Anti Narcotic

Special Squad, detected the crime while searching the premises of the house of the accused, pursuant to reliable information received. The accused

was immediately arrested and the contraband materials seized. Pursuant to investigation carried out by PW1, the final report was filed by PW7.

Thereafter, the case was committed to the Court of Sessions for trial.

The prosecution examined PWs 1 to 7 and marked Exts.P1 to P11. Material objects were marked as MOs 1 to 5, while the defence examined

DW1. After analysing the prosecution evidence, the learned Sessions Judge found the accused guilty and imposed the sentence of imprisonment and

fine as mentioned earlier.

Adv.Sri.P.K.Mohanan, the learned counsel for the Appellant assails the judgment convicting the accused mainly on three grounds viz., (1) the

detection and investigation was carried out by an officer, who was not authorised (2) the accused along with the contraband were handed over to a

Squad of the Excise Department contrary to Section 40 (3) of the Act and (3) the investigation was inordinately delayed.

In support of his submissions, he relies upon the judgment reported in Suresh v. State of Kerala [2017 (2) KLT 765] as well as the unreported

decision in Crl.A.No.632/2011 (Sundaran v. State of Kerala).

The learned Public Prosecutor Adv.Maya M.N.opposes the contentions raised by the appellant and submits that the Excise Inspector attached to

the Excise Enforcement and Anti Narcotic Special Squad was basically an Excise Inspector himself and hence he was authorised to conduct and

carry out the investigation. She further submitted that the violation of Section 43 of the Act is not a material violation so as to doubt the prosecution

case. It was also pointed out that even though the detection was in 1999, the delay in completing the investigation was on account of the

circumstances beyond the control of the investigation and hence the same stands sufficiently explained.

I have considered the contentions raised. The Abkari Act authorises an Abkari Inspector appointed under Section 4 of the Act to carry out the

duties under the Act. The appointment of an Abkari Inspector as defined under Section 3(6) r/w. Section 4 shows that the appointment must be

specified. Even though the Excise Inspector was appointed as the authorised officer, the Excise Inspectors attached to the Anti Narcotic Special

Squad was authorised only by SRO.No.361/2009 dated 08.05.2009. It is evident from the authorisation conferred upon the Excise Enforcement and

Anti Narcotic Special Squad as per SRO.No.361/2009 that prior to the said date, Excise Inspectors attached to the squads did not have authorisation

to act as Excise Inspectors under the Act for the purpose of detecting and investigating offences under Section 55 of the Act.

In the decision reported in Suresh v.State of Kerala [2017 (2) KLT 765] it was held relying upon in Haridas v. State of Kerala [2015 (1) KLT 958]

that only officers specifically authorised by the Government under Section 4 of the Act as Abkari Officers, can discharge the various functions under

the Act, like arrest, detection of offence, investigation etc.and that what was required was a specific Govt.Notification authorising particular category

of officers as Abkari Officer within limits. This Court further went on to hold that a special category of Excise Officials under the Excise

Enforcement and Anti Narcotic Special Squad were conferred with the power to detect offences under the Act only by Notification

SRO.No.361/2009. In the aforesaid circumstances, I find that PW1, who was the Excise Inspector attached to the Excise Enforcement and Anti

Narcotic Special Squad was not an authorised officer under Section 4 of the Act to detect and conduct the investigation in relation to offences under

the Abkari Act for possessing sale of arrack.

During evidence, PW1 submitted that in the morning at 4.00 a.m., the contraband articles and the accused were handed over to the guard in charge

of the Excise Range office, who later informed the investigating officer. There is no case for the prosecution that the guard to whom the accused and

the contraband were handed over by PW1 was an Abkari Officer empowered under Section 5A of the Act or that he was an Abkari Inspector.

Section 40 (3) of the Act reads as follows :-

Procedure on arrest and seizure.-

(1) xxxxx

(2) xxxxx

(3) Every person arrested under Section 31, or Section 34 or Section 35 shall be produced before, and article seized under Section 31 or Section 34

shall be forwarded to, without unnecessary delay,

(a) to the officer in charge of the nearest Police Station;

or

(b) to the officer empowered under Section 5A, or to the Abkari Inspector.â€​

The stipulation in Section 40 (3) of the Act is for a specific purpose so that the sanctity of the contraband articles seized shall not be left in the

custody of a person, who is not a responsible officer or an authorised officer under the Act. The failure of the detecting officer to handover the

contraband and the accused to an authorised person under Section 40 (3) of the Act casts doubts on the prosecution case and the benefit of doubt is

liable to be afforded to the accused.

As pointed out by the learned counsel for the appellant, it is pertinent to note that though the detection of the offence was in 1999, the final report

was filed only on 31.01.2005 causing a delay of almost six years from the date of detection to the date of filing of the final report. It is a settled

position of law by various decisions of this Court that long delay in completing the investigation erodes into the sanctity of the investigation and the

benefit of doubt is entitled to be granted to the accused.

In view of the aforesaid findings, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt since the accused is entitled

to the above three mentioned benefits that arises in the prosecution case. In view of the above, the accused is entitled to be acquitted.

Accordingly the conviction and sentence imposed by the judgment dated 04.12.2007 in SC.No.813/2005 on the files of the Additional Sessions Judge,

Fast Track Court No.II, Palakkad is set aside and the accused is acquitted. The bail bond, furnished, if any, shall stand cancelled and the fine amount,

if remitted shall be refunded to the accused.

The appeal is accordingly allowed.