YASODHA vs STATE OF KERALA

The appellant herein challenges the conviction and

sentence against her under Section 8(2) of the Kerala

Abkari Act (''the Act'' for short) in 452/2009 of the Court of

Session, Kollam.

The prosecution case is that, at about 11.45 a.m

on 16.2.2007, at Muzhangodi Muri in Thodiyoor village

within the limits of the Karunagappally Excise Range, the

appellant was found possessing 10 litres of arrack in a

plastic can. The offence was detected by a Preventive

Officer of the Excise Range. The accused was not arrested

on the spot by the Detecting Officer, but the quantity of

arrack was seized as per a mahazar. On the basis of the

seizure, the Preventive Officer himself registered the crime

and occurrence report. Investigation was taken over by

the Excise Inspector, and after investigation, he submitted

final report in court. On committal, the case came up

before the learned Additional Sessions Judge (Adhoc) I,

Kollam for trial and disposal.

The accused appeared before the trial court and

pleaded not guilty to the charge framed against her under

Section 8 (2) of the Act. The prosecution examined three

witnesses and proved Exts.P1 to P6 documents. The plastic

can allegedly containing arrack had been by the time

produced before the Deputy Commissioner of Excise. When

examined under Section 313 Cr.P.C, the accused denied

the incriminating circumstances. She did not adduce any

evidence in defence.

On an appreciation of the evidence adduced by

the prosecution, the trial court found the accused guilty

under Section (2) of the Act. On conviction, she was

sentenced to undergo simple imprisonment for three months

year, and to pay a fine of 1,00,000/- by judgment dated

03.12.2010. Aggrieved by the said judgment of conviction,

the accused has come up in appeal.

When this appeal came up for hearing, the

learned counsel for the appellant submitted that the

appellant is entitled for the benefit of the serious legal

infirmities in this case, and so the the factual aspects need

not be probed into. One point raised by defence is that, the

crime and occurrence report was registered by an

incompetent officer and the other ground is that the

property was produced by the Excise Official before an

incompetent officer.

PW1 is the Preventive Officer, who detected the

offence and also registered the Ext.P2 crime and occurrence

report. PW3 is the Excise Inspector, who investigated the

case and submitted final report in court. This Court has held

in so many decisions that the various functions under the

Kerala Abkari Act can discharge only by the officers

specifically 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 conferring various

powers under the Act on different officers, and in 2009 the

Government issued another notification in suppression to

the earlier one. In none of these documents, Preventive

Officers of the Excise Department are given powers to

register crimes. They can detect the offences, but once

detected, the Preventive Officer will have to report the fact

of seizure at the Range Office where a competent officer will

have to register crime. No officer below the rank of Excise

Inspectors are authorised under the Government Notification

to register crimes under the Act. Here, the crime was

registered by a Preventive Officer who was not competent

for such a function at that time. A prosecution built on

such crime will have to collapse.

In terms of Section 67B of the Act, the

Government of Kerala has appointed Assistant Excise

Commissioners as authorised officers to discharge the

functions and such category of officer will have to discharge

the functions under Section 53A of the Act. But in this case,

instead of producing the property before the Assistant

Excise Commissioner, the Excise official produced the plastic

can containing arrack before the Deputy Commissioner of

Excise. Ext.P5 is the inventory prepared by the Deputy

Commissioner of Excise on 14.9.2010. The detection in this

case was made on 16.2.2007. There is absolutely no

explanation for the delay of 2= years in producing the

property before the Deputy Commissioner of Excise. There  is no explanation why the Deputy Commissioner received it

and passed orders when he is not authorised under the law

to discharge the functions under Section 57A of the Act. This

is also a very serious infirmity, the benefit of which must go

to the accused. Thus I find that on two very important legal

grounds, the appellant is entitled for acquittal. In such a

situation, the factual aspects need not be probed into.

In the result, this appeal is allowed. Accordingly, the

appellant is found not guilty of the offence under Section 8

(2) of the Act, and she is acquitted of the said offence in

appeal, under Section 386 (b) (i) of Cr.P.C . The conviction

and sentence against her in S.C 452/2009 of the court

below is set aside. The appellant will stand released from

prosecution and the bail bond, if any, executed by her will

stand discharged.