RAJASEKHARAN, S/O.FRANCIS vs STATE OF KERALA

The revision petitioner herein is the accused in C.C

462/1996 of the Judicial First Class Magistrate''s Court-II,

Thiruvananthapuram He faced prosecution in the court

below on the allegation that when the Excise team led by

the Circle Inspector of the Excise Enforcement and Anti-

Narcotic Special Squad, Thiruvananthapuram conducted a

search at the railway quarters No.93K in building No.TC

XIII/107 at about 2.45 p.m on 17.7.1996, the accused was

found possessing huge quantity of Indian made Foreign

Liquor and spirit at the said quarters. He was arrested on

the spot, and the contraband articles were seized as per a

search list and mahazar by the Excise Circle Inspector. He

produced the accused and the properties at the Excise

Range Office, Thiruvananthapuram where the Excise

Inspector registered the crime and occurrence report, and

after investigation, the Excise Inspector submitted final

report in court.

The accused appeared before the trial court and pleaded not guilty to the charge framed against him under

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

The prosecution examined five witnesses and proved Exts.P1

to P5 documents in the trial court. The MO1 to MO4

properties were also identified during trial. The accused

denied the incriminating circumstances when examined

under Section 313 Cr.PC, and he projected a defence that he

has no connection with the quarters searched by the Excise

team, and he has no connection with the contraband

articles seized from the said quarters. The accused did not

adduce any evidence in defence,.

On an appreciation of the evidence, the learned

Magistrate found the accused guilty. On conviction, he was

sentenced to undergo rigorous imprisonment for one year

and to pay a fine of 25,000/- by judgment dated 18.6.1999.

Aggrieved by the judgment of conviction, the accused

approached the Court of Session, Thiruvananthapuram with

Crl.A No.263/1999. In appeal, the learned Additional

Sessions Judge (Adhoc-I), Thiruvananthapuram confirmed

the conviction and sentence and accordingly dismissed the

appeal by judgment dated 7.6.2006. Now the accused is

before this Court in revision under Section 397 Cr.P.C.

On hearing both sides, and on a perusal of the

materials in this case, I find that there is a very serious legal

infirmity in this case, the benefit of which must go to the

accused. This is a case where the detection was made by a

Circle Inspector of the Excise Enforcement and Anti-Narcotic

Special Squad, Thiruvananthapuram. Of course, the crime

and occurrence report was registered by an Excise Inspector

of the concerned Range, and investigation was also made by

him. The very same Inspector submitted final report in

court. The crime and occurrence report was registered by

a competent officer, investigation was made by a competent

officer and final report was also filed by a competent officer.

But the detection was made by an officer who was not

competent to detect offences under the Act.

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

authorised and appointed 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 SRO 234/1967 by which different powers were

conferred on different categories of Excise Officials for the

discharge of functions under the Act. Officers of Special

Squads like Excise Enforcement and Anti-Narcotic Special

Squad or Excise Intelligence Squad were not given powers

under the said notification. Such categories of officers were

given powers by the Government only in 2009 as per the

Notification SRO 361/2009 dated 8.5.2009. Till then, only

Excise Officials of the regular Excise Wing had powers under

the Kerala Abkari Act. Of course, an officer of the regular

Excise Wing attached to some other Excise Range can

detect offences, but once detected, he will have to report

the detection at the concerned Excise Range where the

Excise Inspector of the said Range will register crime and

occurrence report and proceed for investigation. That

privilege given under the proviso to the Government

Notification of 1967 can be applied only in the case of Excise

Officials of the regular wing, given powers under the

Notification. The categories of officers who are not given

powers under the Notification cannot avail the benefit of the

proviso to the notification. This aspect has been settled by

this Court recently. I find that the detection in this case was

made by an incompetent Excise Official. A case built on

such detection must collapse. On the ground of this very

serious legal infirmity itself, the revision petitioner is entitled

for acquittal.

In the result, this petition is allowed. The revision

petitioner is found not guilty of the offence under Section 55

(a) of the Kerala Abkari Act and he is acquitted of the said

offence in revision. Accordingly, the conviction and

sentence against him in CC 462/1996 of the court below

and confirmed in appeal will stand set aside and the revision

petitioner will stand released from prosecution. The

amount, if any deposited by the revision petitioner in the

court below as a condition for suspension of sentence will be

released to him.