VALIYACHALIL GOPALAN vs THE STATION HOUSE OFFICER

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

No.197/2002 of the Court of Session, Kasaragod. He and

the 2nd accused faced trial in the court below under Section

55 (a) of the Kerala Abkari Act ("the Act" for short) on the

allegation that at about 00.30 hrs on 12.12.2000, at the

premises of the Cheruvathur Railway Station, they were

found carrying huge quantity of Karnataka arrack contained

in 300 packets each. The offence was detected by the Sub

Inspector of Police, Chandera on the basis of secret reliable

information. The Police version is that on seeing the Police

party, the two accused ran off and escaped by abandoning

the arrack packets. Though the Police party chased them,

they could not be caught. The huge quantity of arrack

contained in 600 packets was seized as per a mahazar,

and on the basis of the said seizure, a crime was registered

against the two accused. The Sub Inspector of Police,

Neeleswaram investigated the case and the Sub Inspector

of Police, Chandera 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, Kasaragod for trial and disposal.

The two accused appeared before the trial court

and pleaded not guilty to the charge framed against them.

The prosecution examined eight witnesses and proved

Exts.P1 to P9 documents in the trial court. The MO1 and

MO2 properties were also identified during trial. The arrack

packets identified as MO2 series in court are 607 in number,

whereas, the prosecution case is that 600 packets of arrack

were seized. There is no explanation how 607 packets of

arrack were happened to be produced and identified during

trial.

When examined under Section 313 Cr.P.C, both

the accused denied the incriminating circumstances and

projected a defence that they had not possessed or carried

any quantity or any packet of arrack, and that they have

nothing to do with the packets of arrack seized by the

Police in this case. The accused did not adduce any

evidence in defence.

On an appreciation of the evidence, the trial court

found both the accused guilty. On conviction, they were

sentenced to undergo rigorous imprisonment for one year

each and to pay a fine of 1 lakh each by judgment dated

31.8.2004. Aggrieved by the judgment of conviction, the 1st

accused has come up in appeal. It is not known whether the

2nd accused has preferred appeal against the conviction.

When this appeal came up for hearing, I noticed,

on a perusal of the entire materials that there are some

serious infirmities in this case, the benefit of which must go

to the accused. Even according to the prosecution, the two

persons, who were found carrying huge quantity of arrack in

packets, ran off and escaped on seeing the Police party,

after abandoning the arrack packets. The seizure mahazar

or the F.I.R will not show that the Sub Inspector or any

member of his party had seen the accused face to face or

that they had noticed anything or any identification feature

to identify the persons later. During trial, the Sub Inspector

stated that he had prior acquaintance with the accused. But

he does not explain how he had such prior acquaintance

with the two accused. PW7 is the Sub Inspector, who

detected the offence. PW2 is the Police Constable who

assisted the Sub Inspector in the process of detection. PW4

and PW5 examined as independent witnesses turned hostile.

PW1 is the Sub Inspector, who initially investigated the

case, but effective investigation was made later by PW8,

the Sub Inspector of another Police Station. PW3 is the

Village Officer who prepared the Ext.P2 scene plan.

The evidence given by PW7 and PW2 will not

convince the court as to how exactly they could identify the

persons who ran off and escaped from the spot of detection

in the night. On an examination of the evidence given by

the Sub Inspector, it would appear that he saw the two

persons from a distance while standing at the Cheruvathur

railway station, whereas during cross-examination, he stated

that he and his team members concealed themselves

behind the bush at the railway station premises. A perusal

of the mahazar will show that the name and other details of

the persons who ran off and escaped were given by some

witnesses. No such independent witness was cited for

proving the details. PW7 would say that he arrested the two

accused later and produced them in court. He does not

explain how he identified the persons for arrest. I find that

there is no satisfactory evidence in this case to prove that

the two accused are the persons who ran off and escaped on

seeing the Police party.

The detection in this case was made on

12.12.2000, where as the properties were produced in court

only on 15.12.2000. PW7 or PW8 has no explanation for

the delay in producing the properties in court. There is no

evidence to show that the properties were in the safe

custody of PW7 or PW8 till produced in court on 15.12.2000.

In such a circumstance, the possibility of tampering with the

properties cannot be ruled out. When the prosecution is

consistent that only 600 packets of arrack were seized, 607

packets were produced in court. It is not known from where

the Police got seven packets, or who must be responsible

or liable for the possession of those 7 packets. It appears

that the trial court also did not notice this aspect.

Ext.P7 is the copy of the forwarding note in this

case. It does not contain the copy of the specimen seal

affixed on the samples. There is seal in the covering letter

addressed to the court. This Court has settled that in cases

like this, the specimen of the seal must be affixed on the

copy of the forwarding note, and in the absence of such

specimen, the accused cannot be connected with the

property analysed at the laboratory. This is also an infirmity

in the prosecution case.

There is yet another very serious infirmity in this

case. The detection was made by the Sub Inspector of

Police, Chandera, but effective investigation was made by

the Sub Inspector of Police, Neeleswram as authorised by

the Circle Inspector of Police, Neeleswaram. PW8 is the Sub

Inspector who investigated the case. Initial investigation

was made by PW1.

This Court has consistently held in so many

decisions that only the Abkari Officials specifically

authorised and appointed by the Government under Section

4 of the Act can discharge the various functions under the

Act including investigation. In terms of Section 4 of the Act,

the Government of Kerala issued a notification in 1967 as

SR.O 234/1967 by which various powers were conferred on

different categories of Excise Officials of the regular Excise

Wing function-wise and territory-wise. Excise Officials

belonging to one territory or territorial jurisdiction cannot

exercise the functions under the Act beyond the territorial

limits prescribed. Of course, there is a proviso to the

Government Order that the limits of territory shall not apply

in the case of detection made under Section 31 or 34 of the

Act. But there is no such proviso authorising investigation

by officials beyond territorial limits. On this aspect, this

Court has settled the position that in a case where an

investigation is made by an incompetent person or a person

beyond his territorial limits, the whole prosecution will have

to be treated as nonest. In this case, PW8 had no authority

to conduct investigation in a crime of the Chandera Police

Station. He cannot claim authority on the ground of the

authorisation made by the superior officer. The superior

officers cannot assume the role of the Government and

authorise the subordinates to discharge functions under the

Act. Only the Government can make such authorisation, and

only those officers who are specifically authorised by the

Government can discharge the functions. I find that

investigation was made by an incompetent Police officer

and on this legal infirmity, the accused is entitled for

acquittal.

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

sentence against the appellant (1st accused) in S.C

No.197/2002 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.