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Judgment
The revision petitioner herein is the accused in S.C
No.349/2000 of the Court of Session, Kozhikode. He faced
prosecution before the court below on the allegation that at
about 2.30 p.m on 12.11.1999, he was found possessing
1.50 litres of arrack in a plastic can of 5 litres capacity.
The offence was detected by a Preventive Officer of the
Feroke Excise Range. He arrested the accused on the spot,
and seized the plastic can containing arrack as per a
mahazar. Investigation was taken over by the Excise
Inspector and after investigation, he submitted final report
in court.
The accused appeared before the learned First
Additional Asst. Sessions Judge, Kozhikode, and pleaded not
guilty to the charge framed against him under Sections 55
(a) and 8(2) of the Kerala Abkari Act (''the Act'' for short).
The prosecution examined four witnesses in the
trial court and proved Exts.P1 to P7 documents. The MO1
property was also identified during trial. When examined
under Section 313 Cr.P.C, the accused denied the
incriminating circumstances. He did not adduce any oral
evidence in defence. However, Ext.D1 was marked on his
side.
On an appreciation of the evidence, the trial court
found the accused guilty under Section 8(2) of the Act. On
conviction, he was sentenced to undergo rigorous
imprisonment for three years, and to pay a fine of 1 lakh by
judgment dated 28.9.2001. Aggrieved by the judgment of
conviction, he filed appeal before the Court of Session as
Crl.A 554/2001. In appeal, the learned Additional Sessions
Judge, (Adhoc-II), Kozikode confirmed the conviction, but
reduced the substantive sentence to rigorous imprisonment
for 1 = years. The minimum fine sentence was maintained
in appeal by judgment dated 29.9.2005. Now the accused is
before this Court in revision under Section 397 Cr.P.C.
When this revision petition came up for hearing,
the learned counsel for the petitioner submitted that there is
a serious legal infirmity in this case, that the crime and
occurrence report was registered by a Preventive Officer
who was not competent at that time, and so the accused is
entitled for acquittal on that ground.
Of the four witnesses examined in the trial court,
PW1 is the Preventive Officer who detected the offence and
PW4 is the Excise Inspector who investigated the case.
PW2 is the Excise Guard who assisted the Preventive Officer
in the process of detection. PW3, examined as independent
witness, turned hostile.
This Court has settled that the different functions
under the Kerala Abkari Act can be discharged only by the
Officers specifically authorised as Abkari Officers under
Section 4 of the Kerala Abkari Act by the Government. The
Government Notification in force at the time of detection
was the Notification SRO 234/1967. Under the said
notification, Preventive Officers had no power or
competence to register crime and occurrence report. Only
the Range Inspector of the particular Range could register
crime and occurrence report at that time. Of course,
Preventive Officers are competent to detect offences, but
once an offence is detected, he is bound to report the facts at the Range Office. In this case, the crime and occurrence
report was registered by a Preventive Officer. This is a legal
infirmity. A case built on a crime and occurrence report
registered by an incompetent officer must collapse. This
position stands settled by this Court.
On a perusal of the materials, I find reason to
believe that the case was investigated by the Preventive
Officer himself till 20.9.2000, when the Excise Inspector took
over the investigation. The detection was made on
12.11.1999. There is nothing to show that in between the
date of detection and 20.9.2000, the crime was
investigated by the Excise Inspector. This is also a legal
infirmity, the benefit of which must necessarily go to the
accused. The evidence of PW1 shows that he is not certain
what seal was in fact affixed on the sample and the plastic
can. He stated that it is not the seal provided by the
Government or his personal seal. Here, the question of
identification of the sample assumes importance.
In the result, this petition is allowed. The revision
petitioner is found not guilty of the offence under Section 8
(2) of the Kerala Abkari Act and he is acquitted of the said
offence in revision. Accordingly, the conviction and
sentence against him in SC 349/2000 of the court below
and confirmed in appeal will stand set aside and the revision
petitioner will stand released from prosecution.