Kerala High Court

Rajan @ Unnikrishnan vs State Of Kerala on 4 February, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                         CRL.A.No.1162 OF 2007

  AGAINST THE ORDER/JUDGMENT IN SC 983/2005 DATED 31-05-2007 OF
     ADDITIONAL SESSIONS COURT (FAST TRACK NO.II), PALAKKAD


APPELLANT/S:

                RAJAN @ UNNIKRISHNAN, S/O. UNNEERI,
                AGED 58 YEARS
                KANJIRATHINKAL VEEDU,, PALAPPURAM DESOM, OTTAPALAM
                VILLAGE AND TALUK,, PALAKKAD DISTRICT.

                BY ADVS.
                SRI.E.R.VENKATESWARAN
                SRI.R.SREEHARI

RESPONDENT/S:

                STATE OF KERALA
                REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
                ERNAKULAM.

                R1 BY PUBLIC PROSECUTOR
                PP SYLAJA S.L.

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1162 OF 2007

                                  -2-




                        JUDGMENT

Dated this the 4th day of February 2021

Appellant was the accused in a case arising under the

Abkari Act 1077 (for short 'the Act'). The Sessions Court, after

trial, found the accused guilty for the offence under Section 55(a)

read with Section 8(2) of the Act. He was sentenced to undergo

simple imprisonment for a period of one year and to pay a fine of

Rs.1,00,000/- and in default of payment of fine, to undergo

simple imprisonment for three months.

2. The prosecution alleged that, on 09.10.2001 at around

4.15 P.M, the accused was found in possession of 3 litres of arrack

kept in a black coloured can. The offence was detected by PW1.

PW4 registered the crime and PW5 carried out the investigation

and filed the final report. On realising that the final report

revealed a case exclusively triable by a Court of Session, the

learned Magistrate referred the case for trial to a Court of CRL.A.No.1162 OF 2007

Session as provided under Section 209 of the Cr.P.C. Before the

Sessions Court, the prosecution examined PWs.1 to 6 and marked

Exts.P1 to P8 apart from MO1-the black can which contained the

contraband arrack.

3. After considering the evidence adduced in this case,

the learned Sessions Judge by judgment dated 31.05.2007 found

the accused guilty and imposed sentence and fine as mentioned

earlier.

4. Assailing the said judgment, appellant has approached

this Court contending that the learned Sessions Judge went

wrong in concluding that the prosecution had proved the guilt of

the accused beyond reasonable doubt.

5. I have heard Adv.R.Sreehari, the learned counsel for

the appellant as well as the learned Public Prosecutor Smt.Sylaja

S.L.

6. Adv.Sreehari invited the attention of this Court to

S.R.O No.234/67 dated 10.08.1967, issued by the Government of CRL.A.No.1162 OF 2007

Kerala as well as an unreported judgment of this Court in

Crl.Appeal No.156 of 2013 and submitted that the very genesis of

the prosecution case is without jurisdiction or authority, since a

preventive officer of the Excise Department was not authorised

to register a crime under the Act.

7. The learned counsel further submitted that when the

very registration of the crime itself is contrary to law, the

foundation for the crime gets completely effaced and nothing

more needs to be argued to completely throw out the

prosecution case.

8. The learned Public Prosecutor, on the other hand,

submitted that the even though the crime was detected by the

Preventive Officer, the registration of the crime was done by the

Preventive Officer who was acting as an Excise Officer. She

further submitted that this is a case where, all the procedural

formalities were complied with and the chemical examination

report, which is marked as Ext.P8 clearly showed that the sample CRL.A.No.1162 OF 2007

taken from MO1 contained Ethyl alcohol, thus proving the

commission of the offence as alleged.

9. I have considered the rival submissions. A perusal of

Ext.P4 shows that the crime was registered by a person on behalf

of Excise Inspector. It has come out in evidence that PW4 had

signed on behalf of the Excise Inspector, Ottapalam. In his

deposition, PW4 had clearly stated that he is not in possession of

any document conferring any authority upon him to act as an

Excise Inspector. It is a settled proposition of law that, even

though Preventive Officers can prevent the commission of

offences specified in the Act, they are not authorised by law to

Act. The authorisation issued under Section 4 of the Act, as per

S.R.O No.234/67 confers authority upon the Preventive Officer

within the respective jurisdiction to discharge the duty

conferred under Sections 31, 32, 34, 35, 38, 39, 53 and 59 of the

Act. These Sections relate to search, seizure, arrest but not

registration of a crime or to conduct investigation under the CRL.A.No.1162 OF 2007

Abkari Act. The exclusion of authority of Preventive Officers

from registering a crime or to conduct investigation is done with

a specific purpose.

10. This Court had, in Crl.Appeal No.156 of 2013 held that

Preventive Officer under the Abkari Act cannot register a crime.

The relevant portion of the judgment Crl. Appeal No.156 of 2013

is as follows:

"As per the Government notification issued in 1967, only Excise Inspectors and the other officers above him, are competent to register FIR, or to conduct investigation, or to submit final report. Only the powers of arrest and seizure are given to the Preventive Officers as per the Government Order. The crime and occurrence report registered by a wrong officer, or an incompetent person will vitiate the whole prosecution. A prosecution built on such a crime and occurrence report registered by a wrong officer must necessarily collapse. There is nothing to show that the Preventive Officer was in fact in charge of the Excise Inspector on the date of detection. This Court has in so many decisions settled that only authorised officers can discharge the functions under the Kerala Abkari CRL.A.No.1162 OF 2007

Act as Abkari Officers, and they can discharge functions only if they are authorized under Section 4 of the Kerala Abkari Act. As the officer in charge of the Excise Inspector, a Preventive Officer can discharge so many functions including administrative functions. But to discharge the functions under the Kerala Abkari Act, including investigation, or registration of crime, or submitting final report, there must be specific authorisation by the Government under Section 4 of the Kerala Abkari Act, notifying Preventive Officers also as Abkari Officers for the purpose of the functions under Sections 40 to 48 of the Kerala Abkari Act. Registration of crime, investigation etc. come within the scope of Sections 40 to 48 of the Kerala Abkari Act. Thus, I find that the crime and occurrence report in this was registered by an incompetent person. The benefit of this infirmity must go to the accused."

11. Since in the instant case, the crime was registered by

PW4. Admittedly, as evidenced from deposition of PW4, he was a

Preventive officer. The registration of the crime, as submitted

by the learned counsel for the appellant, was without authority.

As rightly contended, when the foundation of the crime is

eroded, nothing further can be built upon it. Accordingly, the

conviction and sentence imposed by judgment dated 31.05.2007 CRL.A.No.1162 OF 2007

in S.C No.983 of 2005 on the files of the Additional Sessions Court

(Fast Track No.II), Palakkad is liable to be set aside.

Accordingly, the conviction of the accused and sentence

imposed upon him by judgment dated 31.05.2007 in S.C No.983 of

2005 on the files of the Additional Sessions Court (Fast Track