MUHAMMED THOUFEEQUE, S/O. E.M.IBRAHIM vs STATE OF KERALA

The appellant herein is the 1st accused in S.C

No.543/2009 of the Court of Session, Kozhikode. He and

two others faced prosecution before the court below, on the

allegation that the accused Nos.1 and 2 transported a

quantity of 1400 litres of spirit in the Tempo Traveller

No.KL-9/B-9914 belonging to the 3rd accused, on

17.6.2006. The offence was detected at the Azhiyur Check

Post on the Kainatty Vatakara public road at about 6.45

p.m on 17.6.2006 by a Preventive Officer, who was on

special duty, at the check post. He arrested the 1st accused

on the spot and seized the contraband articles along with

the vehicle, as per a mahazar.

Without any delay, he

produced the accused and the properties at the Excise

Range Office, Vatakara, where an Excise Inspector

registered the crime and occurrence report. The Excise

Inspector produced the accused in court on the same day,

and produced the properties on 19.6.2006. Investigation

was taken over by the Assistant Excise Commissioner,

Kozhikode and he also submitted final report in court. On

committal, the case came up before the Court of Session

from where it was made over to the learned Additional

Sessions Judge (Adhoc) I, Kozhikode for trial and disposal.

The 2nd accused is said to be the person, who ran off and

escaped from the spot of detection on seeing the Excise

party.

The three accused appeared before the trial court

and pleaded not guilty to the charge frame against them

under Section 55 (a) of the Kerala Abkari Act (for short'' the

Act). The prosecution examined seven witnesses in the trial

court and proved Exts.P1 to P14 documents. All the accused

denied the incriminating circumstances when examined

under Section 313 Cr.P.C. They did not adduce any oral

evidence in defence, but Exts.D1 to D4 were marked.

On an appreciation of the evidence, the trial court

found the accused Nos.2 and 3 not guilty, and accordingly

they were acquitted. However, the 1st accused was found

guilty under under Section 55 (a) of the Act. On

conviction, he was sentenced to undergo rigorous

imprisonment for two years, and to pay a fine of 1,00,000/-

by judgment dated 19.2.2011. Aggrieved by the said

judgment of conviction, the 1st accused has come up in

appeal.

On hearing both sides and on a perusal of the

materials, I find that there are serious infirmities in this case.

PW1 is the Preventive Officer who detected the offence and

PW4 is the Excise Inspector who registered the crime and

occurrence report. This Court has consistently held in so

many decisions that the various functions under the Act can

be discharged only by the officers specifically appointed and

authorised 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 SR.O 234/1967 by which

different powers were conferred on different categories of

Excise Officials, function-wise and territory-wise. Every

category was given power for exercise of functions within a

particular territory or area. However,there is a proviso to

the notification that the limit of territory will not apply to the

discharge of functions under Sections 31 and 34 of the Act.

Here, PW1, a Preventive Officer of another Range detected

the offence, but he reported the fact of detection promptly

at the Excise Range Office, Vatakara. The accused and the

properties were also produced by him at the Excise Range

Office. The crime and occurrence report in this case was

registered by PW4, the Excise Inspector. There also, there is

nothing wrong. PW5 is the Assistant Commissioner of

Excise, who first investigated the case and PW6 is the

Assistant Commissioner of Excise, who succeeded PW5 and

closed the investigation. The final report was also submitted

by him. Assistant Commissioners of Excise are not

authorised to investigate cases or to submit final report

under Section 50 of the Act. There is a general clause in the

1967 Notification, that the various functions under the Act

can be discharged only by the officers not below the rank of

Excise Inspectors. But this general authorisation is always

subject to the specific authorisation under the other clauses.

There is a specific clause authorising Assistant

Commissioner of Excise to discharge various functions.

Those functions do not include investigation or submitting

final report. In short, an Assistant Commissioner of Excise is

not competent under the law to investigate cases under the

Act, or to submit final report under Section 50 of the Act. A

prosecution brought on such a final report submitted by an

incompetent person is nonest in the eye of law. This is the

position settled by this Court in so many decisions. PW1

and his subordinate officer have given evidence proving the

seizure of some plastic cans containing spirit from the

hands of the accused. This evidence is of no use when

there are serious infirmities affecting the whole prosecution

case. Thus, I find that the accused is entitled for the benefit

of the serious illegalities discussed above.

In the result, this appeal is allowed. The conviction and

sentence against the appellant in S.C No.543/2009 of the

court below will stand set aside on the finding that the

appellant is not guilty of the offence under Section 55(a) of

the Kerala Abkari Act, and accordingly he is acquitted of the

said offence in appeal under Section 386(b)(i) of the Cr.P.C.

The appellant is released from prosecution, and the bail

bond, if any, executed by him will stand discharged.