SUDHEESH KUMAR vs STATE OF KERALA

The appellants challenge the conviction and sentence

against them under section 55(a) of the Kerala Abkari Act

(''the Act'' for short) in S.C 159/2010 of the Court of Session,

Palakkad.

The prosecution case is that, at about 10.30 a.m

on 24.3.2009, they were found transporting a huge quantity

of 1120 litres of spirit contained in 35 plastic jars in the

vehicle No.TN63V.2914. They were arrested on the spot by

the Circle Inspector of Excise, Chittoor, and the contraband

articles including the vehicle were seized as per mahazar.

The Circle Inspector in turn produced the properties and

the accused in the Excise Range Office, where an Assistant

Excise Inspector registered the crime. He also produced the

properties before the Deputy Commissioner of Excise.

Investigation was taken over by an Excise Inspector of the

Palakkad Excise Enforcement and Anti-Narocotic Special

Squad, and he also submitted final report in court. After

complying with the procedure, the case was committed to

the Court of Session by the committal court, and the case

was later made over to the learned Additional Sessions

Judge (Adhoc No.1), Palakkad for trial and disposal.

The accused appeared before the trial court and

pleaded not guilty to the charge framed against him under

Section 55(a) of the Act. The prosecution examined seven

witnesses including the Detecting Officer and proved Exts.P1

to P16 documents. MO1 to MO3 properties were also

identified during trial. When examined under Section 313

Cr.P.C, the accused denied the incriminating circumstances.

They did not adduce any evidence in defence. However,

Ext.D1 contradiction in the statements of witnesses was

proved.

On an appreciation of the evidence, the trial court

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

conviction, they were sentenced to undergo rigorous

imprisonment for four years each, and to pay a fine of

1,00,000/- each by judgment dated 16.7.2012. Aggrieved

by the judgment of conviction, the accused have come up in

appeal.

When this appeal came up for hearing, the

learned counsel for the appellant submitted that the

appellants are entitled for acquittal on the basis of so many

illegalities and infirmities in the prosecution case as regards

the process of investigation, the final report, and also

registration of crime. Of course, the crime in this case was

detected by a Circle Inspector of Excise within his

jurisdiction. He in turn produced the accused and the

properties in the Excise Range Office where an Assistant

Excise Inspector registered the crime. This is the first

infirmity or illegality argued by the defence. As on the date

of detection, an Assistant Excise Inspector was not

authorised under the law to discharge any function under

the Act. Only in May 2009, the Government of Kerala issued

a notification SRO 361/09 dated 8.5.2009 authorising

Assistant Excise Inspectors also to discharge the functions

as Abkari Officers under the Kerala Abkari Act. As per this

notification, all the powers given to the Excise Inspectors

are given to Assistant Excise Inspectors also. But the

detection in this case was made on 24.3.2009, before the

Government notification. As per the Government notification

SRO 234/1967, the Government has invested different

categories of Excise Officials with powers under the Kerala

Abkari Act. The Government notification also specifies the

territorial limits and jurisdiction within which the different

categories will have to discharge functions. If at all the

Assistant Excise Inspector was in charge of Excise Inspector,

that will not justify the registration of crime by him. Crimes

under the Abkari Act can be registered only by the persons

authorised by Government Notification under Section 4 of

the Act. Such powers are given to Excise Inspectors. An

Assistant Excise Inspector or Preventive Officer is not given

powers to register crime under the Act. So a crime

registered by an incompetent officer, and the prosecution

built on it must collapse.

Another infirmity argued by the defence is that

properties were produced by the Assistant Excise Inspector

before the Deputy Commissioner of Excise. The government

has issued notification appointing Assistant Excise

Commissioner as authorised officer under Section 67B of the

Act. The properties seized by a detecting officer cannot be

produced before any other authority not competent as

authorised officer under Section 67B of the Act. This is also

a very material infirmity or illegality in the prosecution case.

Another illegality argued by the defence is that

investigation was conducted in this case by an unauthorised

person. Of course, investigation was conducted by an

Excise Inspector. The 1967 notification issued by the

Government is very clear that Abkari officers authorised

thereunder shall exercise their functions and duties within

the area specified or within their territorial limits. So, only

the Excise Inspector, having jurisdiction over the area where

the offence was detected, can make investigation as abkari

officer under the Act. In this case investigation was not

conducted by such an officer having jurisdiction over the

area. Yet another infirmity argued by the defence is that the

final report was also filed by a wrong person. Here it was

submitted by the Excise Inspector, who conducted

investigation. The points stated above are covered by so

many decisions of this Court. Those are Subrahmaniyan

v. State of Kerala (2010(2) KLT 470), Sasidharan v.

State of Kerala (2012(2) KLT 392) and Krishnan N. v.

State of Kerala (2015(1) KHC 822). In all these cases

this Court has consistently held that the functions under the

Kerala Abkari Act can be discharged and performed only by

Abkari officers specifically authorised by the Government

under Section 4 of the Act. In this case I find that the whole

prosecution is tainted with serious illegalities and infirmities,

the benefit of which must necessarily go to the accused.

Just because the case is proved on facts, the accused cannot

be found guilty or convicted when there are very serious

illegalities and infirmities in the prosecution case.

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

sentence against the appellants in S.C No.159/2010 of the

court below will stand set aside on the finding that the

appellants are not guilty of the offence under Section 55(a)

of the Kerala Abkari Act, and accordingly they are acquitted

of the said offence in appeal under Section 386(b)(i) of the

Cr.P.C. The appellants are released from prosecution, and

the bail bond, if any, executed by them will stand

discharged.