Kerala High Court

Raghavan vs State Of Kerala on 23 February, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

   TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942

                         CRL.A.No.2495 OF 2006

  AGAINST THE ORDER/JUDGMENT IN SC 220/2006 DATED 30-11-2006 OF
         ADDITIONAL SESSIONS JUDGE (ADHOC)-1, KOTTAYAM

AGAINST THE ORDER/JUDGMENT IN CP 8/2006 OF JUDICIAL MAGISTRATE OF
                  FIRST CLASS -I,KANJIRAPPALLY


APPELLANT:

                RAGHAVAN, S/O. VELUTHAKUNJU,
                MOOLEVADAKKETHIL HOUSE,, PARATHANAM KARA,
                MUNDAKKAYAM.

               BY ADV. SRI.V.K.SUNIL

RESPONDENT:

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

               R1 BY PUBLIC PROSECUTOR

OTHER PRESENT:

               SRI.D.CHANDRASENAN, SR.PP, SMT.K.SEENA FOR APPELLANT

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2495 OF 2006                     2



                        P.V.KUNHIKRISHNAN, J
                        --------------------------------
                           CRL.A.No.2495 OF 2006
                         -------------------------------
                                  JUDGMENT

Dated this the 23rd day of February 2021

Appellant is the accused in S.C.No.220/2006, on

the file of the Additional Sessions Judge (Adhoc)-1,

Kottyam. The above case is charge sheeted by the

Excise Circle Inspector, Ponkunnam against the

appellant alleging the offences punishable under

Section 55(a) read with Section 8(1) and (2) of the

Abkari Act.

2. The prosecution case is that on 28/8/2003

at about 5.10pm, the accused was found in possession

of a bottle containing 375ml of arrack kept hidden

under his waist. Hence, it is alleged that the accused

committed offences punishable under Section 55(a) of

the Abkari Act.

3. To substantiate the case, the prosecution

examined PW1 to PW5. Exts.P1 to P6 were also

marked on the side of the prosecution. MO1 is the

material object.

4. After going through the evidence and

documents, the trial Court found that the accused

committed the offence punishable under Section 55(a)

of the Abkari Act. The accused is sentenced to undergo

rigorous imprisonment for six months and to pay a

fine of Rs.1,00,000/-. In default of payment of fine,

the accused is directed to undergo rigorous

imprisonment for a further period of three months.

Aggrieved by the conviction and sentence, this

Criminal Appeal is filed by the accused in this case.

5. Heard the learned counsel for the appellant

and the learned Public Prosecutor.

6. The counsel for the appellant submitted that,

in this case, forwarding note and property list are not

marked. The counsel also submitted that the

Preventive Officer registered the case as evident from

Ext.P5 crime and occurrence report. Therefore, the

entire prosecution is vitiated because the Preventive

Officer is not an authorised person to register the

case as per the Abkari Act.

7. The learned Public Prosecutor submitted

that, based on the oral and documentary evidence, the

offence against the accused is proved, and there is

nothing to interfere with the conviction and sentence

imposed by the trial court.

8. Admittedly, the forwarding note is not

produced and marked by the prosecution in this case.

The relevancy of forwarding note is considered by this

court in several judgments.

9. In abkari cases, forwarding note is important

because the specimen seal used by the detecting

officer will find a place in it. It is the fundamental duty

of the prosecution to prove all the links starting from

seizure of the contraband till it reaches in the hands of

the analyst. Forwarding note is one of the links to

prove the prosecution case in abkari cases.

10. This Court in several decisions considered the

relevancy of the forwarding note. Some of the

decisions are Gireesh @ Manoj v. State of Kerala

(2019(4) KLT 79), Vijayan @ Pattalam Vijayan and

another v. State of Kerala (2018 (2) KHC 814) and

Prakasan and another v. State of Kerala (2016 KHC 96) .

The relevant portion of the judgment in Gireesh's case

(supra) extracted hereunder:

"14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by PW5 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See Prakasan v. State of Kerala (2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16))."

11. Moreover, the property list is also not

produced and marked. There is some relevancy for the

property list in Abkari cases. If that is not produced

and marked that is fatal to the prosecution.

12. Admittedly, the property list is not marked in

this case. The relevancy of property list in abkari cases

is considered by this Court in several judgments. Once

a contraband article is seized from the possession of

the accused, it should be produced before the Court

concerned forthwith. When the property is produced

before the Court, it will be produced along with a

property list. The trial Court and the appellate Court

can verify the date on which the property reached the

Court only by going through the endorsement in the

property list. Simply because the witnesses deposed

that the property reached the Court on such and such

date, it cannot be believed safely. When there are

documents to prove that the property is reached the

Court on a particular date and the same is not marked

by the prosecution, according to me an adverse

inference can be taken under Section 114(g) of the

Evidence Act, against the prosecution. Simply because

the witnesses deposed that, the property reached the

Court on such and such date, the same is not

acceptable unless the property list is produced and

marked in cases like this. Admittedly the property list

is not marked in this case. Therefore, this Court is

handicapped in ascertaining the date on which the

property is produced before the Court. It is now

settled by a catena of decision of this Court, that the

property should be produced before the Court

forthwith and if the same is not produced, that is fatal

to the prosecution. To find out when exactly the

property reached the Court, the property list is

relevant. If property list is not produced and marked

by the prosecution, that itself is a ground for acquittal.

13. In addition to all this the Preventive Officer

registered Ext.P5 crime and occurrence report. The

Preventive Officer is not an authorized person to

the root of the case.

14. Admittedly, the Preventive Officer registered

the case. According to him, he was in charge of Excise

Inspector on that day. But when the Abkari Act

authorizes certain person to do certain activities,

simply because the Preventive Officer is in charge of

the Excise Inspector, he can not register a case. This

point is considered by this Court in judgment dated

21.12.2015 in Crl.Appeal.No.300/2006. The relevant

portion of the judgment is extracted hereunder;

"9. After having heard learned counsel for the appellant and the learned Public Prosecutor and having perused the records and provisions of the Act, there seems to be some force in the submission of the learned counsel for the appellant. To understand the position as contended by the learned counsel for the appellant, reference to the provisions is required. First among them being the definition of 'Abkari Officer' as contained in Section 3(2) of the Abkari Act which reads as follows:-

"3(2) Abkari Officer:- "Abkari Officer" means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5."

Section 3(6) defines 'Abkari Inspector' as follows:

"3(6) Abkari Inspector.- "Abkari Inspector"

means an officer appointed under Section 4, clause

(d)."

Section 4 reads as follows:-

"4. The Government may, by notification in the Gazette:-

(a) The Government may appoint an officer to control the administration of the Abkari Department:- Appoint an officer, who shall be styled the commissioner of Excise and who shall, subject to the general control of the Government have Control of the administration of the Abkari Department and of the collection of the Abkari Revenue or of both;

(b) May appoint any person other than the Commissioner to perform all or any of his duties:- Appoint any person other than the Commissioner of Excise to exercise all or any of the powers and to perform all or any of the duties of the Commissioner of Excise, subject to the control of the Government.

(c) May withdraw Abkari powers from Commissioner or other officer appointed under clause (a) or clause (b):- Withdraw from the Commissioner or other officer appointed under clause (a) or clause (b) any or all of his powers in respect of the Abkari Revenue;

(d) May appoint officer to take action under Sections 40 to 53:- Appoint officers to perform the acts and duties mentioned in Sections 40 to 53 inclusive of this Act;

(e) And subordinate officers:- Appoint subordinate officers of such classes and with such designations, powers and duties under this Act as the Government may think fit.

(f) May appoint any officer of Government or persons to act as above:- Order that all or any

of the powers and duties assigned to any officer under clauses (d) and (e) of this section shall be exercised and performed by any Officer of Government or any person.

(g) Delegate to any Abkari Officer all or any of their powers under this Act."

It may be noticed at once that Abkari Inspector means an officer appointed under Section 4 clause

(d). It means those officers mentioned in Sections 40 to 53 inclusive of the Act. So that Abkari officers empowered to act under Sections 40 to 53 alone can qualify as Abkari Inspector.

Section 5 reads as follows:

"5. The Government may, from time to time, make rules:- (1) Prescribing the powers and duties under this Act to be exercised and performed by Abkari Officers of the several classes; and

(2) regulating the delegation by the Government or by the Commissioner of Excise of any powers conferred by this Act or exercised in respect of Abkari Revenue under any law for the time being in force."

The notification issued in pursuance to the above provision, S.R.O. 234/1967 which was in force as on the date of incident in this case contained entry No.12 which has already been quoted. One may look into entry No.8 in the above notification which reads as follows:

8. All officers of the Excise Department not below the rank Within the areas of Excise Inspectors to perform for which they

the acts and duties mentioned are appointed. in Sections 40 to 53 inclusive of the Act.

Therefore, the distinction between entries 8 and 12 is conspicuous. Entry No.8 in the notification says that all officers of the Excise Department not below the rank of Excise Inspectors can perform the acts and duties mentioned in Sections 40 to 53 of the Act. Entry No.12 says that Preventive Officer can only exercise powers for the purposes of Sections 31,32, 34, 35, 38, 39, 53 and 59. Going by the scheme of the Act, Preventive Officer can take such steps so as to prevent the commission of crime, even arrest the accused without warrant. Their power ceases when they produce the articles and the accused before the Excise Inspector and thereafter they cannot proceed to exercise powers under Sections 40 to 53 of the Act."

15. The above judgment squarely cover the point

raised by the appellant. Section 40 of the Abkari Act

says about the procedure on arrest and seizure. A

Preventive Officer is authorized as per the Abkari Act to

arrest and seize contraband articles. But there is no

authorization to the Preventive Officer to do the

activities prescribed under Section 40 of the Abkari

Act. The Preventive Officer could not assume charge

simply because the excise officer is not present in the

office. Without authorization he cannot register a case.

If an unauthorized person register a case, it will go to

the root of the case. Hence, I think the appellant in