CR IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 CRL.A.No. 276 of 2003() ----------------------- SC.351/1999 of ADDL. SESSIONS COURT (ADHOC), KALPETTA .................... APPELLANT(S): ACCUSED --------------------- JOSEPH, S/O. MATHAI, PERUMBADAPOTHIYIL HOUSE, PADICHIRAM PULPALLY, WAYANAD DISTRICT BY ADV. SRI.S.M.PRASANTH RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-10-2009, THE COURT ON 23/10/2009 DELIVERED THE FOLLOWING: V. RAMKUMAR , J. -------------------------------------------------- Crl. Appeal No. 276 of 2003 ---------------------------------------------------- Dated this the 23rd day of October, 2009. JUDGMENT The interesting question coming up for judicial resolution in this case is as to whether the Excise Officers of the State Excise Department could be treated as “police officers” within the meaning of Sec. 25 of the Indian Evidence Act, 1872. 2. In this appeal filed under Section 374 of the Code of Civil Procedure, 1973 (Cr.P.C. for short), the appellant who was the sole accused in S.C. No. 351 of 1999 on the file of the Additional Sessions Court (Adhoc), Kalpetta, challenges the conviction entered and the sentence passed against the appellant for an offence punishable under Section 55(a) of the Kerala Abkari Act. 3. The case of the prosecution can be summarised as follows:- On 22.07.1997, at about 5.30 p.m., behind Perumbadapothiyil House belonging the accused by name Joseph Crl. Appeal No. 276 of 2003 -:2:- alias Vellimala Pappachan at Vandikadavu in Padichira village of Sulthan Bathery taluk and abutting the Kanaram river , the accused was found in possession of 45 litres of illicit arrack. Since the said possession was in contravention of the provisions of the Abkari Act, the accused has thereby committed an offence punishable under Section 55(a) of the Abkari Act. 4. On the accused pleading not guilty to the charge framed against him by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 7 witnesses as P.Ws 1 to 7 and got marked 4 documents as Exts. P1 to P4 and 3 material objects as Mos. 1 to 3. 5. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He made the following submissions before court:- He was not present when the alleged seizure of arrack took place. The excise people were bringing the cans containing the Crl. Appeal No. 276 of 2003 -:3:- arrack into his tea shop after taking the same from the vicinity of the river. When the excise people attempted to arrest his wife and daughter, the neighbours obstructed. He appeared before the excise inspector on the next day. He is innocent in this case. 6. Since the case was not a case of no evidence for the prosecution, the court below did not record an order of acquittal under Section 232 Cr.P.C. The appellant did not adduce any defence evidence when called upon to enter on his defence. 7. The learned Addl. Sessions Judge, after trial, as per judgment dated 13.01.2003 found the appellant guilty of the offence punishable under Section 55(a) of the Abkari Act and sentenced him to rigorous imprisonment for one year and to pay a fine of Rs.1 lakh and on default to pay the fine, to suffer simple imprisonment for three months. It is the said judgment which is assailed in this appeal. 8. I heard the learned counsel appearing for the appellant as well as the learned Public Prosecutor. 9. After a careful reappraisal of the oral and documentary evidence in the case, I am not satisfied that the prosecution has succeeded in establishing the guilt of the appellant beyond Crl. Appeal No. 276 of 2003 -:4:- reasonable doubt. 10. PW1 is the Excise Inspector, Sulthan Bathery Excise Range who allegedly detected the offence. PW2 was the Excise Preventive Officer who accompanied PW1. PWs 3 and 4 are the independent witnesses to Ext.P1 seizure mahazar. Both of them turned hostile to the prosecution. PW5 is the attestor to Ext.P2 scene mahazar. PW6 was the Excise Inspector who conducted the investigation by preparing Ext.P2 scene mahazar and questioning the witnesses. PW7 was the Excise Inspector who verified the investigation conducted by PW6 and filed the final report before the Judicial Magistrate of the First Class-I, (JFCM-I for short), Sulthan Bathery under Section 173 (2) Cr.P.C. 11. What is unravelled through the oral and documentary evidence adduced by the prosecution is the following:- On 22.07.1997, PW1 (Excise Inspector) along with his excise party including PW2 (Preventive Officer) was on patrol duty. While so, P.W.1 got a credible secret information to the effect that the accused namely Perumpadapothiyil Joseph was clandestinely selling arrack. The excise party led by PW1 Crl. Appeal No. 276 of 2003 -:5:- proceeded to the said place at Vandikadavu. When they went near the river behind the tea shop run by the appellant's wife, they found the appellant with MO3 black jerry can of 5 litre capacity in his right hand and coming from the opposite direction. As soon as the appellant saw the excise party, he made an attempt to decamp from there. Getting suspicious, P.W.1 and his excise party restrained the appellant. The contents of the jerry can was tested by PW1 by tasting and smelling the same to find that it was illicit arrack. When questioned about the contents of the 5 litre jerry can carried by the appellant, he admitted that it was illicitly distilled arrack. Then, in the presence of PWs 3 and 4, (the independent witnesses) PW1 arrested the appellant and took the jerry can into custody. On further interrogation of the appellant he revealed to P.W.1 that he had filled the jerry can from the bulk quantity of arrack kept inside the nearby bushes. On searching the nearby bushes, two black jerry cans (Mos 1 and 2) having a capacity of 35 litres with one jerry can full of the same liquid and another containing 5 litres of the same liquid were found. Those two jerry cans were also seized. Since the arrack inside all the Crl. Appeal No. 276 of 2003 -:6:- jerry cans was of similar nature, 200 ml. by way of sample was drawn by PW1 from one of the cans into a bottle having a capacity of 375 ml. The jerry cans and the sample bottles were sealed and seized under Ext.P1 mahazar to which PWs 1 and 2 and the independent attestors affixed their signatures. The appellant as well as the properties and the seizure documents were then taken to the Sulthan Bathery Excise Range Office from where Ext.P3 crime and occurrence report was prepared and a case was registered as CR 71/97. Ext.P2 is the scene mahazar prepared by PW6 another Excise Inspector who conducted the investigation. Ext.P4 is the chemical analysis report which shows that the sample of liquid forwarded to the Chemical Examiner contained 36.90 percent by volume of ethyl alcohol. 12. In the first place, the statement in Ext.P1 mahazar and the testimony of PWs 1 and 2 to the effect that the accused admitted that the contents of the 5 litre jerry can held by him was arrack are not admissible in evidence. The further statement in the said mahazar that the accused told the excise party that the said can was filled from the bulk quantity of arrack kept in the nearby bushes, is also not admissible. The reason for Crl. Appeal No. 276 of 2003 -:7:- this is that even though PWs 1 and 2 are excise officials, after the amendment of Section 50 of the Abkari Act with effect from 03.06.1997, excise officers can no more be considered as non- police officers so as to exclude confessions made to them. Amended Sec. 50 of the Abkari Act, reads as follows:- “50. Report of Abkari Officer gives jurisdiction to a competent Magistrate: (1) Every investigation into the offence under this Act shall be completed without unnecessary dealy. (2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to 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 the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).” Until the issuance of G.O.(P) 71/96 dated 29.03.1996 published as SRO 321/96 all officers of the State Excise Department not below the rank of Excise Inspectors were having the power to perform the duties under Sections 31 to 53 and 59 of the Act. But as per the aforesaid notification, Police Officers of a particular category and revenue officers of a particular category were also authorised to perform most of the aforesaid duties of Excise Inspectors. The said notification reads as follows:- Crl. Appeal No. 276 of 2003 -:8:- “S.R.O. No. 321/96 : - In exercise of the powers conferred by section 4 of the Abkari Act, 1 of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective jurisdiction for the purposes of Sections 31,32,33,34,35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the sections aforesaid. This notification shall come into force with immediate effect”. Since the Abkari Act does not prescribe the procedure for investigation into the offences under the said Act, and also since the powers and duties of the officers as provided under Chapter VIII of the Act consisting mainly of Sections 30 to 53 – A are not inconsistent with the provisions of the Cr.P.C by virtue of Section 4(2) of Cr.P.C, all offences under any other law including the Abkari Act are to be investigated in accordance with the provisions contained in the Cr.P.C. Section 4 Cr.P.C. reads as follows:- “4(1) Trial of offences under the Indian Penal Code and other laws:- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. Crl. Appeal No. 276 of 2003 -:9:- (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences”. In paragraphs 120 and 121 of Directorate of Enforcement v. Deepak Mahajan AIR 1994 SC 1775, the Apex Court observed as follows:- “120. Lastly, it falls for our consideration whether Section 4 (2) of the Code of Criminal Procedure can be availed for investigating, inquiring or trying offences under any law other than the Indian Penal Code which expression includes FERA and Customs Act etc. 121. Section 4 (2) of the Code corresponds to Section 5(2) of the old code, Section 26 (b) of the Code corresponds to Section 29 of the old Code except for a slight change. Under the present Section 26 (b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is mentioned in this behalf, may be tried by the High Court or other Court by which such offence is shown in the Fist Schedule to be triable. The combined operation of Sections 4 (2) and 26 (b) of the Code is that the offence complained of should be investigated or inquired into or tried according to the provisions of the Code where the enactment which creates the offence, indicates no special procedure”. 13. Here, the Kerala Abkari Act does not prescribe any special procedure for investigation into the offences under the Crl. Appeal No. 276 of 2003 -:10:- said Act. After conclusion of the investigation, the Abkari Officer is to file a final report in accordance with Section 173 (2) Cr.P.C as enjoined by Section 50(2) of the Abkari Act. Such report is to be filed as soon as investigation is completed. Even without any conferment of power, Abkari Officers, thus by necessary implication become officers in charge of a police station for the purpose of conducting investigation. [Vide Deepak Mahajan's Case (Supra)]. Thus, going by Sub- section 2 of Section 50 of the Abkari Act, every Abkari Officer, after the completion of investigation, is required to file a report in accordance with sub-Section 2 of Section 173 Cr.P.C. For reasons to be stated hereinafter every Abkari Officer filing a charge sheet, after the amendment of Section 50 of the Abkari Act with effect from 3-6-1997 will have to be treated as a Police Officer for the purpose of Sec. 25 of the Evidence Act. 12. It is not the garb which an officer wears but it is the nature of power he weilds that may be determinative of the question as to whether such officer is a police officer or not. If it were otherwise, then confessions recorded by C.B.I. officers who have no prescribed uniform will have to be included for Crl. Appeal No. 276 of 2003 -:11:- consideration and confessions recorded by Forest Officers like Range Officers etc. who wear khaki uniform and cap will have to be eschewed from consideration. But that is not the test to be applied. One of the main points of distinction judicially recognised to distinguish a police officer from a non-police officer is the exclusive authority of the police officer to file a final report called the “police report” under Section 173(2) Cr.P.C. (Vide Ramesh Chandra v. State of W.B. - AIR 1970 S.C. 940 (5 Judges); K.I. Pavunny v. Assistant Collector, C.E.C., Cochin- 1997 (3) SCC 721; Badaku Joti v. State of Mysore – AIR 1966 S.C. 1746 (5 Judges); Raj Kumar Karwal v. Union of India – AIR 1991 SC 45; Balkishan v. State of Maharashtra – AIR 1981 SC 379; State of Kerala v. Ramadasan – 1988 (1) KLT 270; Ahmmed Koya v. State of Kerala – 1990 (2) KLT 405 and Seethamaniyan v. State of Kerala – 1996 (1) KLT 313. In State of Punjab v Barkat Ram - AIR 1962 SC 276 the with a Coram strength of 3 Judges, the majority speaking through Ragubar Dayal (J) although held that a customs officer acting either under the Land Customs Act, 1924 or the Crl. Appeal No. 276 of 2003 -:12:- Sea Customs Act, 1878 is not a police officer for the purpose of Sec. 25 of the Evidence Act, however, observed that for an officer to be understood as a police officer, he need not necessarily be a member of the police force. Subba Rao, J in his dissenting view approved a passage from the judgment of Balakrishna Ayyar, J, in Public Prosecutor v. Paramasivam - AIR 1953 Madras 917 and observed that the said view lays down with clarity the real test for determining whether a particular officer is a police officer or not within the meaning of Sec. 25 of the Evidence Act. The said passage by a Division Bench of the Madras High Court reads as follows:- “There is no exhaustive definition of the expression “Police Officer “ in any of our statutes. .........In the absence of a statutory definition, and, apart from all authority one would be tempted to say that a police officer is a person whom any statute or other provision of law calls such, or, on whom it confers all or substantially all the powers and imposes the duties of a police officer. If he is expressly called a police officer there is no difficulty whatsoever. If he is not so called then the next step is to ask “what does the law require him to do ? What are the duties imposed on him ? and what are the powers conferred on him ? If these are Crl. Appeal No. 276 of 2003 -:13:- substantially those of a police officer there need be no qualms in regarding him as one. If his powers and duties are confined to a particular extent of territory or to a particular subject-matter he will be a police officer only in respect of that territory or that subject-matter. The material thing to consider would be not the name given to him, nor the colour of the uniform he is required to wear, but his functions, powers and duties. A police, officer does not cease to be such merely because he is put into a white khadder uniform instead of one in khaki drill; a medicine will be just the same whether it is packaged in a glass jar or a plastic container”. Subsequently, in Raja Ram Jaiswal v. State of Bihar – AIR 1964 SC 828 a majority of two Judges' with a total Coram strength of three Judges' observed as follows: “In regard to certain matters, he (Excise Officer) does not possess powers even analogous to those of a Police Officer. Thus he is not entitled to submit a report to a Magistrate under Sec. 190 of the Code of Criminal Procedure with a view that cognizance of the offence be taken by the Magistrate. Section 187 (A) of the Sea Customs Act specifically provides that cognizance of an offence under the Sea Customs Act can be taken only upon a complaint in writing made by the customs Officer or other officer of the Customs not below the rank of an Crl. Appeal No. 276 of 2003 -:14:- Assistant Collector of Customs authorised in this behalf, by the Chief Customs Officer”. In para 14 of the majority observed as follows:- “ This provision (Section 25 of the Evidence Act) was thus enacted to eliminate from consideration, confessions made to an officer who, by virtue of his position, could extort by force, torture or inducement a confession. An Excise Officer acting under Sec. 78 (3) (of the Bihar and Orissa Excise Act, 1915) would be in the same position as an officer in-charge of a police station making an investigation under Chapter XIV of the Code of Criminal Procedure. He would likewise have the same opportunity of extorting a confession from a suspect. It is, therefore, difficult to draw a rational distinction between a confession recorded by a police officer strictly so called and one recorded by an Excise Officer who is deemed to be a Police Officer”. In paragraph 23 of the judgment, the majority concluded as follows:- “ (23). There is one more reason also why the confession made to an Excise Sub-Inspector must be excluded, that is, it is a statement made during the course of investigation to a person who exercises the powers of Crl. Appeal No. 276 of 2003 -:15:- an officer in charge of a police station. Such statement is excluded from evidence by S. 162 of the Code of Criminal Procedure except for the purpose of contradiction. Therefore, both by S. 25 of the Evidence Act as well as by S. 162, Cr.P.C. the confession of the appellant is inadmissible in evidence. If the confession goes, then obviously the conviction of the appellant cannot be sustained. Accordingly, we allow the appeal and set aside the conviction and sentences passed on the appellant”. The confession made to an Excise Inspector was thus excluded from consideration. The Supreme Court in Deepak Mahajan's Case (Supra) – AIR 1994 SC 1775 observed in para 115 as follows:- “It should not be lost sight of the fact that a police officer making an investigation of an ofence representing the State files a report under Section 173 of the Code and becomes the complainant whereas the prosecuting agency under the special Acts files a complaint as a complainant i.e. under Section 61 (ii) in the case of FERA and under Section 137 of the Customs Act. To say differently, the police officer after consummation of the investigation files a report under Section 173 of the Code upon which the Magistrate may take cognizance Crl. Appeal No. 276 of 2003 -:16:- of any offence disclosed in the report under Section 190 (1)(b) of the Code whereas the empowered or authorised officer of the Special Acts has to file only a complaint of facts constituting any offence under the provisions of the Act on the receipt of which the Magistrate may take cognizance of the said offence under Section 190 (1) (a) of the Code. A fter taking cognizance of the offence either upon a police report or upon receiving a complaint of facts, the Magistrate has to proceed with the case as per the procedure prescribed under the Code or under the special procedure, if any, prescribed under the special Acts. Therefore, the word “investigation” cannot be limited only to police investigation but on the other hand, the said word is with wider connotation and flexible so as to include the investigation carried on by any agency whether he be a police officer or empowered or authorised officer or a person not being a police officer under the direction of a Magistrate to make an investigation vested with the power of investigation”. In the case of a non-police officer, he does not, therefore, have the authority to file a police report under Section 173 (2) Cr.P.C. Until the amendment of Section 50 of the Abkari Act, all abkari officers were authorised to file only Crl. Appeal No. 276 of 2003 -:17:- complaints and cognizance of the offences under the Abkari Act was being taken on such complaints. But after the amendment of Section 50, Abkari Officers can only file a final report in accordance with Section 173(2) Cr.P.C thereby transforming Abkari Officers also to the status of police officers. With effect from 3-6-1997 in all prosecutions under the Abkari Act, Abkari Officers are filing police reports (charge sheets) as provided under Section 173 (2) Cr.P.C. Hence any confession made to an abkari officer after 03.06.1997 will be deemed to be a confession made to a police officer within the meaning of Section 25 of the Evidence Act and will stand interdicted by the said Section. If so, the confession made by the appellant to P.W.1 Excise Inspector cannot be relied on as an incriminating piece of evidence. 14. What now survives for consideration is as to whether there is any other incriminating evidence against the appellant after eschewing the confession made to P.W.1. The prosecution has no case that P.W.1 is an Crl. Appeal No. 276 of 2003 -:18:- officer who by virtue of his experience, if any, could legitimately be treated as an expert who can conclusively opine that a particular liquid is arrack by smell and taste. The very fact that P.W.1 himself drew a sample for the purpose of confirmation through chemical analysis shows that even P.W.1 did not trust his own olfactory and gustatory senses. It is unsafe to convict a person basing solely on the smelling sense or tasting faculty of a person. Proof by a technical person who has considered the matter from a scientific point of view is not only desirable but is also necessary. (See State of A.P. v. Madiga Boogenna – AIR 1967 S.C. 1550 and State of Kerala v. Sreedharan – 1965 KLT 1002). Even according to PWs 1 and 2, the only can which the appellant was actually carrying was MO3 which is a black jerry can having a capacity of 5 litres. The other two jerry cans