Kerala High Court
Chandran @ Ramachandran Maniyani vs Excise Inspector, Kasaragod Excise ... on 3 March, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946
CRL.REV.PET NO. 2239 OF 2013
AGAINST THE JUDGMENT DATED 07.10.2013 IN Crl.A NO.288 OF
2011 OF SESSIONS COURT, KASARAGOD ARISING OUT OF THE JUDGMENT
DATED 29.09.2011 IN SC NO.288 OF 2010 OF ASSISTANT SESSIONS
COURT, KASARAGOD
REVISION PETITIONER/APPELLANT/ACCUSED:
CHANDRAN @ RAMACHANDRAN MANIYANI
AGED 45 YEARS
S/O.NARAYANAN MANIYANI, GOKULAM NILAYAM,
PERIYADUKKAM, KUDLU VILLAGE, KASARAGOD.
BY ADV SRI.T.G.RAJENDRAN
RESPONDENTS/COMPLAINANT & STATE:
1 EXCISE INSPECTOR, KASARAGOD EXCISE RANGE-671121
2 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM.
OTHER PRESENT:
SRI. SANAL.P.RAJ-PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 28.02.2025, THE COURT ON 03.03.2025 DELIVERED THE FOLLOWING:
2
Crl.R.P.No.2239/2013
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ORDER
This criminal revision petition is preferred impugning the
judgment of the learned Sessions Judge, Kasaragod in Crl.A.No.288/2011.
2. The revision petitioner herein is the sole accused in
Crime No.57/2007 of Kasaragod Excise Range registered for offence
punishable under Section 55(a)of the Abkari Act.
3. The prosecution case is that, on 04.09.2007 the
accused was found carrying 10 litres of arrack at Olayathaduku road in
Kudlu village.
4. The trial court convicted and sentenced the accused to
undergo simple imprisonment for two years and to pay a fine of Rs.one
lakh and in default to undergo simple imprisonment for six months.
5. The appellate court confirmed the conviction and
modified the sentence. Impugning the judgment of the learned Sessions
Judge, the accused preferred this revision.
6. Before the trial court, PWs.1 to 4 were examined and
Exts.P1 to P11 were marked. PW1 is the Excise Inspector who detected the
offence. PW2 is the Preventive Officer who accompanied PW1 while
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detecting the offence. PW3 is the independent witness. PW4 Assistant Excise
Inspector conducted the investigation and filed final report before the
learned Magistrate.
7. Thereafter, the case was committed to Sessions Court,
Kasaragod. The learned Sessions Judge made over the case to Assistant
Sessions Court, Kasaragod. After the closure of the prosecution evidence,
the accused was questioned under Section 313(1)(b) of the Code of Criminal
Procedure. After full fledged trial, the Assistant Sessions Judge convicted
and sentenced the accused as aforementioned.
8. I have heard Adv. Sanal P. Raj, the learned Public
Prosecutor and Adv.T.G.Rajendran, learned counsel appearing for the
revision petitioner.
9. The learned Public Prosecutor submitted that the
impugned order is legally sustainable and no interference, whatsoever, is
warranted in this matter. He further submitted that the prosecution has
succeeded in alleging and proving the charge against the revision petitioner.
10. Per contra, the learned counsel for the revision
petitioner submitted that the impugned order is illegal, irregular and
improper. Both the trial court and the appellate court had failed to note the
illegalities and improprieties in this case.
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11. The learned counsel further submitted that the
prosecution has failed to allege and prove the charge against the accused
beyond reasonable doubt. He submitted that the penal statutes are to be
interpreted strictly within the four corners of the statute. Suspicion,
however strong it may be, it would not be a substitute for proof. The
impugned judgment is based on surmises and conjectures.
12. I have heard the rival submission of the counsel for the
parties and perused the records.
13. The learned counsel for the revision petitioner mainly
urged four grounds. The first submission by the learned counsel for
revision petitioner/accused is that, the investigation in this case was
conducted by Assistant Excise Inspector. The Assistant Excise Inspector is
not authorized to conduct investigation in an Abkari offence. The learned
Public Prosecutor resisted this argument contending that, as per
Government Order - SRO 361/2009 dated 08.05.2009, the Assistant
Excise Inspector is authorized to conduct investigation in an abkari
offence. In view of that Government order, I do not find any force in the
said argument.
14. The second submission by the learned counsel for the
revision petitioner/accused is that, in this case investigation was
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conducted by a subordinate officer. The detection was done by PW1, who
is an Excise Inspector, but the investigation was conducted by an officer
subordinate to Excise Officer ie., Assistant Excise Officer. The learned
counsel has placed reliance on the decision of this Court in Jinto v. State
of Kerala [2023 KLT Online 2004], wherein this Court observed that,
the investigation should be conducted either by an officer having equal
rank or a higher rank. The relevant portion of the judgment is extracted
hereunder.
"18. PW8-the detecting officer was the
Excise Circle Inspector. But, investigation was done by
PW9-the Excise Range Officer, who was his subordinate.
When the detection is done by a superior officer, the
subordinate officer, who is entrusted with the investigation,
will be in a delicate position and he may find it difficult to go
against the report of his superior officer, even if some facts
comes to his way during the course of investigation, which
goes against the detection and seizure. When detection is by
a superior officer, investigation done by a sub-ordinate
officer causes prejudice to the accused. So it is always
preferable and desirable that in a case detected by a superior
officer, investigation should be done by an officer of higher
rank or even of same rank."
15. The very purpose of investigation itself is that, rather
the case detected by an officer is to be rechecked or verified by another
independent officer, if there is any bias or prejudice to the accused, can
thereby be avoided. In this case, the investigation was done by an officer
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subordinate to the detecting officer.
16. The third contention by the learned counsel for the
revision petitioner is that the investigation in this case was done after a
lapse of two years. The delay cause in investigation, ie., particularly with
regard to the questioning of the material witnesses and their statements,
after a gap of two years, would be fatal to the prosecution story. That itself
cuts the very root of the prosecution story.
17. Before further discussion, it may be useful to extract
the relevant provisions of the Code of Criminal Procedure and Abkari Act.
Section 173(1) of the Code of Criminal Procedure says that investigation
should be completed without unnecessary delay.
"173. Report of police officer on completion of
investigation.--
(1) Every investigation under this Chapter shall be
completed without unnecessary delay.
(1A) The investigation in relation to 3 [an offence under
sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB
or 376E] from the date on which the information was recorded
by the officer in charge of the police station.]
(2) (i) As soon as it is completed, the officer in charge of the
police station shall forward to a Magistrate empowered to take
cognizance of the offence on a police report, a report in the
form prescribed by the State Government, stating-- (a) the
names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with
the circumstances of the case;
(d) whether any offence appears to have been committed and,
if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether
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with or without sureties;
(g) whether he has been forwarded in custody under section
170.
[(h) whether the report of medical examination of the woman
has been attached where investigation relates to an offence
under 2 [ sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA,
376DB] or section 376E of the Indian Penal Code (45 of
1860)].]
(ii) The officer shall also communicate, in such manner as may
be prescribed by the State Government, the action taken by
him, to the person, if any, by whom the information relating to
the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under
section 158, the report shall, in any case in which the State
Government by general or special order so directs, be
submitted through that officer, and he may, pending the orders
of the Magistrate, direct the officer in charge of the police
station to make further investigation.
(4) Whenever it appears from a report forwarded under this
section that the accused has been released on his bond, the
Magistrate shall make such order for the discharge of such
bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170
applies, the police officer shall forward to the Magistrate along
with the report--
(a) all documents or relevant extracts thereof on which the
prosecution proposes to rely other than those already sent to
the Magistrate during investigation;
(b) the statements recorded under section 161 of all the
persons whom the prosecution proposes to examine as its
witnesses.
(6) If the police officer is of opinion that any part of any such
statement is not relevant to the subject-matter of the
proceedings or that its disclosure to the accused is not essential
in the interests of justice and is inexpedient in the public
interest, he shall indicate that part of the statement and
append a note requesting the Magistrate to exclude that part
from the copies to be granted to the accused and stating his
reasons for making such request.
(7) Where the police officer investigating the case finds it
convenient so to do, he may furnish to the accused copies of all
or any of the documents referred to in sub-section (5).
(8) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub-
section (2) has been forwarded to the Magistrate and, where
upon such investigation, the officer in charge of the police
station obtains further evidence, oral or documentary, he shall
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forward to the Magistrate a further report or reports
regarding such evidence in the form prescribed; and the
provisions of sub-sections (2) to (6) shall, as far as may be,
apply in relation to such report or reports as they apply in
relation to a report forwarded under sub-section (2).
50. Report of Abkari Officer gives jurisdiction to a
competent Magistrate. -
(1) Every investigation into the offence under this Act
shall be completed without necessary delay.
(2) As soon as investigation into the offences under this Act is
completed, the Abkari Officer shall forward a Magistrate,
empowered to take cognizance of the offence on a police report,
a report in accordance with sub section (2) of section 173 of
Code of Criminal Procedure, 1973."
18. On going through Section 173(1) of the Code of
Criminal Procedure and Section 50(1) of the Abkari Act, it is crystal clear
that, an investigation in an offence be completed without unnecessary
delay. In the instant case, the questioning of the material witnesses as a
part of investigation was started after a gap of two years, which casts
serious doubts in the prosecution story.
19. In Jinto's case (supra), it is held that, when there is
unexplained delay in completing investigation, same is fatal to the
prosecution. The relevant paragraphs are extracted below:
"20. In the case on hand, though the detection
was on 17.06.2006, the witnesses were questioned by the
investigating officer in the year 2009 i.e., after 3 years of
detection, and prosecution has not offered any explanation
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for that delay. The final report also was laid against the
revision petitioner after three years of the incident.
21. No explanation has been given by the
prosecution as to why there was delay in completing the
investigation and filing the final report. Where there is
unexplained delay in completing investigation and filing the
final report, the same is fatal to the prosecution, [Reliance
placed on Krishnan H. v. State of Kerala (2015 (2)
KLT SN 8 (C.No. 11) = 2015 (1) KHC 822); Chandran
v. State (2016 (4) KLT 727 = 2016 (5) KHC 650)."
20. In the decision in Moothedath Sivadasan &
Another v. State of Kerala [2021 KLT 744], it is held as under:
"The occurrence in this case was on
15.06.2000 and the final report was filed on 18.07.2002.
There was inordinate delay in filing the final report
before the court. As per S. 50 of the Act, every
investigation into the offences under the Act shall be
completed without unnecessary delay. As soon as
investigation into the offences under the Act is
completed, the Abkari Officer is obliged to forward a
report in accordance with sub-s. (2) of S. 173 of the Cr.
P.C. to a Magistrate empowered to take cognisance of the
offence on a police report. In this case, the inordinate
delay in filing the final report before the court has not
been explained by the prosecution. Further, the then S.I.
of Police, Iritty who filed the final report before the court,
was not examined as a witness for the prosecution."
21. This Court in the decision in Gangadharan v. State
of Kerala [2024(1) KHC 111] observed that unexplained delay in
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completing the investigation and filing final report is fatal to the
prosecution. The relevant paragraphs are extracted hereunder:
"34. Though the occurrence was on 10.09.2005,
the investigation was completed and charge sheet was laid
only on 28.09.2007, with a delay of two years. S.50 of the
Abkari Act says that, every investigation into the offences
under the Act shall be completed without unnecessary
delay. No explanation whatsoever has been offered by the
prosecution, for the delay of two years in completing the
investigation, and filing the final report. The unexplained
delay in completing the investigation, and filing the final
report is no doubt fatal to the prosecution. [See
Moothedath Sivadasan v. State of Kerala 2021 (1)
KLT 744, Kumaran P. v. State of Kerala and
another 2016 (4) KLT 718]."
22. In the instant case also, no explanation, whatsoever is
offered by the prosecution to explain the inordinate delay in filing the
charge sheet. It is further submitted that, PW3 - an independent witness
turned hostile to the prosecution. According to the learned counsel for the
revision petitioner, considering all the illegalities, infirmities and
irregularities stated above would casts serious doubts in the prosecution
story. The prosecution has failed to allege and prove the charge against
the revision petitioner/accused beyond reasonable doubt. It is trite law
that the penal provisions are to be interpreted within the four corners of
the statute.
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23. On going through the records of the case and upon
hearing the rival submissions of the counsel for the parties, I am of the
view that the trial court and appellate court had overlooked vital
illegalities, infirmities or irregularities, which cuts the very root of the
prosecution case.
In the result,
(i) Criminal revision petition is allowed.
(ii) The impugned order is set aside.
(iii) The revision petitioner/accused is acquitted and he is
set at liberty.
(iv) The bail bond, if any, executed by the revision
petitioner stands cancelled.
(v) Fine, if any, paid by him shall be refunded.
Sd/-
K. V. JAYAKUMAR
JUDGE
Sbna/-
