Manikantan @ Krishnakumaran vs State Of Kerala
2021 Latest Caselaw 698 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

        THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

   FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942

                       CRL.A.No.2439 OF 2007

    AGAINST THE JUDGMENT DATED 04-12-2007 IN SC 813/2005 OF
 ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.II, PALAKKAD


APPELLANT/ ACCUSED :

            MANIKANTAN @ KRISHNAKUMARAN,
            S/O MANAKULAM VEETTIL CHATHAN,
            KANNAMANGALAM DESOM, AMBALPPARA VILLAGE,
            OTTAPALAM TALUK, PALAKKAD DISTRICT.

            BY ADVS.
            SRI.P.K.MOHANAN(PALAKKAD)
            SRI.VINOD RAVINDRANATH

RESPONDENT/ COMPLAINANT :

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

            BY PUBLIC PROSECUTOR SMT.MAYA M.N.


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
08.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2439 OF 2007

                                   2




                             JUDGMENT

Dated this the 8th day of January 2021

The appellant was convicted and sentenced for the offence

under Section 55(g) r/w.Section 8(2) of the Kerala Abkari Act (for

short, 'the Act'). He assails the judgment in this appeal.

2. The prosecution case was that on 20.07.1999 at about

10.00 p.m., the accused was found brewing illicit arrack at his

residence in Ottapalam in violation of the provisions of the Act. PW1,

who was at that point of time the Excise Inspector of the Palakkad

Excise Enforcement and Anti Narcotic Special Squad, detected the

crime while searching the premises of the house of the accused,

pursuant to reliable information received. The accused was

immediately arrested and the contraband materials seized. Pursuant

to investigation carried out by PW1, the final report was filed by PW7.

Thereafter, the case was committed to the Court of Sessions for trial.

3. The prosecution examined PWs 1 to 7 and marked

Exts.P1 to P11. Material objects were marked as MOs 1 to 5, while

the defence examined DW1. After analysing the prosecution

evidence, the learned Sessions Judge found the accused guilty and CRL.A.No.2439 OF 2007

imposed the sentence of imprisonment and fine as mentioned earlier.

4. Adv.Sri.P.K.Mohanan, the learned counsel for the

Appellant assails the judgment convicting the accused mainly on

three grounds viz., (1) the detection and investigation was carried

out by an officer, who was not authorised (2) the accused along with

the contraband were handed over to a Squad of the Excise

Department contrary to Section 40 (3) of the Act and (3) the

investigation was inordinately delayed.

5. In support of his submissions, he relies upon the

judgment reported in Suresh v. State of Kerala [2017 (2) KLT

765] as well as the unreported decision in Crl.A.No.632/2011

(Sundaran v. State of Kerala).

6. The learned Public Prosecutor Adv.Maya M.N.opposes

the contentions raised by the appellant and submits that the Excise

Inspector attached to the Excise Enforcement and Anti Narcotic

Special Squad was basically an Excise Inspector himself and hence he

was authorised to conduct and carry out the investigation. She

further submitted that the violation of Section 43 of the Act is not a

material violation so as to doubt the prosecution case. It was also

pointed out that even though the detection was in 1999, the delay in

completing the investigation was on account of the circumstances CRL.A.No.2439 OF 2007

beyond the control of the investigation and hence the same stands

sufficiently explained.

7. I have considered the contentions raised. The Abkari

Act authorises an Abkari Inspector appointed under Section 4 of the

Act to carry out the duties under the Act. The appointment of an

Abkari Inspector as defined under Section 3(6) r/w. Section 4 shows

that the appointment must be specified. Even though the Excise

Inspector was appointed as the authorised officer, the Excise

Inspectors attached to the Anti Narcotic Special Squad was

authorised only by SRO.No.361/2009 dated 08.05.2009. It is evident

from the authorisation conferred upon the Excise Enforcement and

Anti Narcotic Special Squad as per SRO.No.361/2009 that prior to the

said date, Excise Inspectors attached to the squads did not have

authorisation to act as Excise Inspectors under the Act for the

purpose of detecting and investigating offences under Section 55 of

the Act.

8. In the decision reported in Suresh v.State of Kerala

[2017 (2) KLT 765] it was held relying upon in Haridas v. State

of Kerala [2015 (1) KLT 958] that only officers specifically

authorised by the Government under Section 4 of the Act as Abkari

Officers, can discharge the various functions under the Act, like CRL.A.No.2439 OF 2007

arrest, detection of offence, investigation etc.and that what was

required was a specific Govt.Notification authorising particular

category of officers as Abkari Officer within limits. This Court further

went on to hold that a special category of Excise Officials under the

Excise Enforcement and Anti Narcotic Special Squad were conferred

with the power to detect offences under the Act only by Notification

SRO.No.361/2009. In the aforesaid circumstances, I find that PW1,

who was the Excise Inspector attached to the Excise Enforcement

and Anti Narcotic Special Squad was not an authorised officer under

Section 4 of the Act to detect and conduct the investigation in

relation to offences under the Abkari Act for possessing sale of

arrack.

9. During evidence, PW1 submitted that in the morning at

4.00 a.m., the contraband articles and the accused were handed over

to the guard in charge of the Excise Range office, who later informed

the investigating officer. There is no case for the prosecution that

the guard to whom the accused and the contraband were handed

over by PW1 was an Abkari Officer empowered under Section 5A of

the Act or that he was an Abkari Inspector. Section 40 (3) of the Act

reads as follows :-

CRL.A.No.2439 OF 2007

40. Procedure on arrest and seizure.-

           (1)    xxxxx
           (2)    xxxxx
           (3)    Every person arrested under Section 31, or Section

34 or Section 35 shall be produced before, and article seized under Section 31 or Section 34 shall be forwarded to, without unnecessary delay,

(a) to the officer in charge of the nearest Police Station; or

(b) to the officer empowered under Section 5A, or to the Abkari Inspector."

10. The stipulation in Section 40 (3) of the Act is for a

specific purpose so that the sanctity of the contraband articles seized

shall not be left in the custody of a person, who is not a responsible

officer or an authorised officer under the Act. The failure of the

detecting officer to handover the contraband and the accused to an

authorised person under Section 40 (3) of the Act casts doubts on

the prosecution case and the benefit of doubt is liable to be afforded

to the accused.

11. As pointed out by the learned counsel for the

appellant, it is pertinent to note that though the detection of the

offence was in 1999, the final report was filed only on 31.01.2005 CRL.A.No.2439 OF 2007

causing a delay of almost six years from the date of detection to the

date of filing of the final report. It is a settled position of law by

various decisions of this Court that long delay in completing the

investigation erodes into the sanctity of the investigation and the

benefit of doubt is entitled to be granted to the accused.

12. In view of the aforesaid findings, the prosecution has

failed to prove the guilt of the accused beyond reasonable doubt

since the accused is entitled to the above three mentioned benefits

that arises in the prosecution case. In view of the above, the accused

is entitled to be acquitted.

Accordingly the conviction and sentence imposed by the

judgment dated 04.12.2007 in SC.No.813/2005 on the files of the

Additional Sessions Judge, Fast Track Court No.II, Palakkad is set

aside and the accused is acquitted. The bail bond, furnished, if any,

shall stand cancelled and the fine amount, if remitted shall be

refunded to the accused.

The appeal is accordingly allowed.

Sd/-

BECHU KURIAN THOMAS, JUDGE RKM