Kerala High Court
Sasi 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.375 OF 2006
AGAINST THE JUDGMENT IN SC 275/2002 DATED 20-01-2006 OF
ADDITIONAL DISTRICT & SESSIONS COURT FAST TRACK (ADHOC),
MAVELIKKARA
AGAINST CP 91/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
KAYAMKULAM
APPELLANT/ACCUSED:
SASI,
S/O. KOCHUNANU,
VALUPURAYIDATHIL VADAKKU,
PATHIYOOR KIZHAKKUMURI, PATHIYOOR VILLAGE,
KARTHIKAPPALLY TALUK,
ALLEPPEY DISTRICT.
BY ADVS.
SRI.R.GOPAN
SRI.BASANT BALAJI
RESPONDENTS/COMPLAINANTS:
1 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
2 THE EXCISE INSPECTOR
KAYAMKULAM RANGE.
SRI.DHANIL M.R., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Appeal No.375/06 -:2:-
JUDGMENT
Dated this the 4th day of February, 2021
Appellant challenges the conviction and sentence imposed by
judgment dated 20.1.2006 in S.C. No.275 of 2002 on the files of the
Additional Sessions Court, Fast Track (Ad hoc), Mavelikara. By the
impugned judgment, the appellant has been convicted for the offence
under Sections 8(1), (2) and 55(a) of the Abkari Act, 1077, and
sentenced to undergo rigorous imprisonment for three years and to
pay fine of Rs.1,00,000/- for the aforesaid offences and in default of
payment of fine, to undergo rigorous imprisonment for one year.
2. The prosecution case was that on 6.2.2001 at 11 a.m., the
preventive officer attached to the Kayamkulam Excise Range, while
on patrol duty, found the accused in possession of 700 ml of illicit
arrack and after seizing the contraband and arresting the accused, a
crime was registered by him and thereafter the offence was
investigated by PW5.
3. In order to prove the prosecution case, PW 1 to PW5 were
examined and Exts.P1 to P6 were marked, apart from the material
object MO1, while the defence examined DW1.
4. After appreciating the evidence adduced, learned Sessions
Judge found the accused guilty of the offence alleged and sentenced
him to imprisonment and fine, as mentioned earlier.
5. I have heard Adv.R.Gopan, the learned counsel for the
appellant as well as Adv.Dhanil M.R., the learned Public Prosecutor.
6. It is pointed out by the learned counsel for the appellant that
PW1, who detected and registered the crime, was only a Preventive
Officer who was not authorised under law to register the crime.
Learned counsel for the appellant invited my attention to S.R.O.
No.234/1967 dated 10.8.1967 to illustrate that Preventive Officer,
though entitled to search, detect and seize, they are not authorised
under Section 4 as abkari officers to register a crime under the Abkari
Act.
7. The learned Public Prosecutor opposed the submission of
the learned counsel for the appellant and stated that during the stage
of evidence no questions have been put to PW1 regarding his
authorisation and that at this appellate stage accused cannot
question the authority of the officer, who registered the crime. It was
also pointed out that PW5 had stated that the authorisation of PW1 to
register a crime as officer-in-charge had already been mentioned in
the final report.
8. I have considered the rival contentions. It is already a
settled proposition that preventive officers are not authorised to
register a crime under the Abkari Act. The authority of a Preventive
Officer under the Abkari Act stops with detention, search, seizure and
even arrest but nothing further. Authority to register a crime under
the Abkari Act have not been given to a Preventive Officer. The
aforesaid proposition has already been laid down by this Court in
Crl.Appeal No.156 of 2013 wherein it was held 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 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."
9. The argument of the learned Pubic prosecutor that since no
questions had been put to the witnesses during the evidence stage
and that at this stage such a contention cannot be put forth, is to be
negatived. The question of authority or jurisdiction to register a crime
is a question of law and can be raised at any time. Further, it is
obviously a part of the burden of the prosecution to prove that from
the detection of crime till filing of final report, all requirements of law
have been scrupulously been followed. Authority to register a crime,
being a significant factor in the aforesaid process, is certainly within
the scope of appellate jurisdiction to consider the authority of the
officer to register the crime.
10. In view of the above, nothing further remains to be
considered in this case, as the very foundation of offence alleged
against the appellant stands erased.
11. In the above circumstances, the judgment dated 20.1.2006
in S.C. No.275 of 2002 on the files of the Additional Sessions Court,
Fast Track (Adhoc), Mavelikara, is hereby set aside and the appellant
is acquitted. The bail bonds, if any, furnished shall stand cancelled
and fine amount, if any, remitted shall be refunded forthwith.
The appeal is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
/True Copy/ PS to Judge
