IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 CRL.A.No. 32 of 2011() ---------------------- SC.160/2007 of ADDL. SESSIONS COURT (ADHOC)FAST TRACK-1, PATHANAMTHITTA .................... APPELLANT ----------------- SURENDRAN,C.NO.5588, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. SMT.DHANYA P.ASOKAN(STATE BRIEF) RESPONDENT --------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.P.MAYA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/10/2011, THE COURT ON 28/10/2011 DELIVERED THE FOLLOWING: VK V.K.MOHANAN, J. ------------------------------- Crl.A.No.32 of 2011 ------------------------------- Dated this the 28th day of October, 2011. J U D G M E N T The sole accused in S.C.No.160/07 is the appellant herein. In this appeal, he challenges his conviction and sentence imposed against him under Sections 8(1) and (2) of the Abkari Act vide judgment dated 15.10.2010 in S.C.No.160 of 2007 of the court of Additional District and Sessions Judge (Adhoc), Fast Tack court-I, Pathanamthitta. 2. The prosecution case is that, on 26.4.2004 at 12.15 p.m. the accused was seen with a plastic bottle containing 1 ½ ltrs. of arrack, on the bund leading to Padavinakam A Block from Vilakkumaram Junction, by the Excise Circle Inspector and thus the accused has committed offence punishable under Sections 8(1) and (2) of the Abkari Act. On the basis of the above allegation, O.R.No.15/04 was registered in the Excise Range, Thiruvalla, and after investigation a report was filed before the Judicial First 2 Crl.A.No.32 of 2011 Class Magistrate court-Thiruvalla, wherein C.P.No.164/06 was instituted and the learned Magistrate by his order dated 21.2.2007 in the above proceedings, committed the case to the Sessions court, wherein the same is received as S.C.No.160 of 2007. On the appearance of the accused, after hearing the defence as well as the prosecution, a formal charge was framed against the accused for the offence under Section 8(1) r/w 8(2) of the Abkari Act, which was read over and explained to the accused and he pleaded not guilty. Consequently, the prosecution adduced its evidence, which consists of oral evidence of Pws.1 to 6 and documentary evidence as Exts.P2 to P9. M.O.(1) was identified and marked as material objects. Finally, the learned Judge of the trial court has found that the prosecution has proved that the accused was in possession of M.O.(1) bottle containing 1 ½ ltrs. of arrack on 26.4.2004 at 12.15 p.m. and accordingly, he is found guilty for the charges levelled against him and on such conviction, the 3 Crl.A.No.32 of 2011 accused is sentenced to undergo rigorous imprisonment for 2 years and to pay fine of Rs.1 lakh and in default, he is directed to undergo rigorous imprisonment for 6 months. Set off was allowed. It is the above findings and order of conviction and sentence challenged in this appeal. 3. As the appellant is undergoing imprisonment in pursuance to the impugned judgment, he preferred this appeal from jail and on receipt of the jail appeal, as directed by this Court, the Registry has appointed Smt.Dhanya P.Asokan, from the panel of State brief to prosecute the appeal for and on behalf of the appellant. Thus I have heard Smt.Dhanya P.Asokan, learned counsel for the appellant and Smt.P.Maya learned Public Prosecutor. 4. Smt.Dhanya, learned counsel appearing for the appellant, vehemently challenged the jurisdiction of the trial court for taking cognizance and conducting the trial, since the report has been filed not by a competent officer, as envisaged by Section 50 of the Kerala Abkari Act. In support 4 Crl.A.No.32 of 2011 of the above contention, learned counsel very much placed reliance upon the decisions of this Court in Subash Vs. State of Kerala (2008(2) KLT 1047), Unni Vs. State of Kerala (2009(2) KHC 661) and Baiju Vs. State of Kerala (2011(1) KLD 346). It is pointed out by learned counsel that, till the notification, which issued vide G.O.(P) No.420/2009 TD dtd.8.5.2009 Thiruvananthapuram, all the powers and the duties under the Section mentioned thereunder are vested with the Excise Inspector alone and subsequently as per the above notification, the powers which exercised by the Excise Inspector, are also given to the Assistant Excise Inspectors of the Excise Range and thus according to the learned counsel, in the present case the date of occurrence was on 26.4.2004, on which date the Assistant Excise Range Inspector was not authorised either to register the crime or the occurrence report. On the other hand, the learned Public Prosecutor on the strength of the decision of this Court in Vikraman Vs. State of Kerala 5 Crl.A.No.32 of 2011 (2007(1) KLT 1010) submitted that, in the present case the detection of the crime, the seizure and arrest of the accused were made by a competent officer, namely the Excise Circle Inspector and therefore, the registration of crime and occurrence report by Assistant Excise Inspector would not vitiate the investigation and trial, especially when the final report was filed by a competent officer and therefore the trial undertaken by the trial court is fully correct and justified and the same is not vitiated. In the light of the rival pleadings advanced by the learned counsel for the appellant and the learned Public Prosecutor and in the light of the findings of the court below based upon the materials and evidence, the only question to be considered is whether the trial court is justified in over-ruling the contention advanced by the defence, that PW3 the Assistant Excise Inspector has no authority under the Abkari Act to register crime and other steps and further, whether the trial court is justified in its finding and convicting the accused/appellant for the 6 Crl.A.No.32 of 2011 offence under Sections 8(1) and (2) of the Abkari Act. 5. In the present case, according to the prosecution, while PW1 was on patrol duty he got information that on the bund leading to Padavinakam A Block from Vilakkumaram Junction, a person was selling arrack and he reached the place of occurrence and there a person was seen from a distance of 50 mtrs. with a bottle and on seeing the party, the said person tried to escape from the spot but he was intercepted and the seizure was effected as per Ext.P3 mahazar. Subsequently, the accused was arrested as per Ext.P1 arrest memo under Ext.P2 intimation to his wife. M.O.(1) bottle was also identified by PW1. PW2 is the Preventive Officer who accompanied PW1 at the time of detection of the crime and arrest of the accused with the contraband article. The evidence of Pws.1 and 2 is intact and there is no contradiction between their evidence. According to them, after the arrest and seizure, they reached in the Excise Range Office and produced the 7 Crl.A.No.32 of 2011 accused as well as the material objects before PW3, who in turn registered Ext.P5 crime and occurrence report. PW3 has prepared Ext.P6 remand application and Ext.P7 property list and he produced the accused as well as the contraband article before the court. Ext.P9 chemical analysis report and Ext.P8 carbon copy of the forwarding note etc. were proved through PW3. Subsequently, the investigation was undertaken by PW4 who finally laid the charge. Thus it was PW3, the Assistant Excise Range Inspector of Thiruvalla Excise Range, registered Ext.P5 crime and occurrence report. It is also relevant to note that the prosecution has also examined PW5, who is an attestor to Ext.P3 mahazar, to prove the seizure and arrest of the accused but during his examination though PW5 admitted his signature, he denied that he has seen the occurrence. PW6 is another independent witness and an attestor to Ext.P3 but he was also turned hostile to the prosecution. Thus both Pws.5 and 6 were declared as hostile. 8 Crl.A.No.32 of 2011 6. Though Pws.1, 2, 3 and 4 were subjected to lengthy cross examination, nothing brought on record to discredit their version. It appears that, the only challenge raised by the accused during the trial as well as before this Court is to the effect that, PW3 the Assistant Excise Inspector is not competent and empowered to register the crime and occurrence report and therefore all further proceedings including the trial are vitiated. In the present appeal also, the contention taken is to the effect that Ext.P5 crime and occurrence report was registered by PW3 and therefore the investigation undertaken thereto are improper and vitiated. In support of the above contention, learned counsel placed reliance of decision of this Court in Baiju Vs. State of Kerala (2011(1) KLD 346). According to me, the above contention is not sustainable. It is came out in evidence that PW3 was in charge of Excise Range, Thiruvalla, as the Excise Inspector of that range was on leave. On a perusal of Ext.P5 it can be seen that, PW3 has signed in Ext.P5 in his capacity 9 Crl.A.No.32 of 2011 as a person in-charge of the Excise Range Inspector. In the decision relied on by the learned counsel for the appellant in Baiju Vs. State of Kerala (2011(1) KLD 346), the crime as well as the final report was laid by the Grade Sub Inspector, who was actually working as Assistant Sub Inspector and it is in that circumstances, this Court has held that, “the Assistant Sub Inspector has though given the Grade of a Sub Inspector is not an Abkari officer under the Act and therefore mere confirmation of a Grade as a Sub Inspector does not make a person a Sub Inspector capable of exercising powers under the Act”. 7. It is relevant to note that in the decision of the Division Bench, reported in Subash Vs. State of Kerala (2008(2) KLT 1047) there the charge was laid by Assistant Sub Inspector and therefore the Division Bench has held that the court has no jurisdiction to proceed with such a charge filed by an incompetent officer. But in the present case, the facts and circumstances are entirely different. PW1 is a 10 Crl.A.No.32 of 2011 competent officer who detected the crime and effected the arrest of the accused as well as the seizure of the contraband article. His evidence is supported by PW2, the Preventive Officer, who accompanied PW1. Though Pws.5 and 6 turned hostile, the evidence of Pws.1 and 2 regarding the detection of the crime, the arrest of the accused and seizure of the contraband article are intact. According to Pws.1 and 2, after the preparation of Ext.P3 mahazar, by which the contraband articles were seized and the accused was arrested as per Ext.P1 under Ext.P2 intimation, the contraband article as well as the accused were produced in the Excise Range office. So the duty of PW1, being the officer who detected the crime and arrested the accused, are effectively discharged by producing the accused as well as the contraband article in the Excise Range office. As per the scheme of the Act, especially under Section 40(4), the authority or officer before whom any person is produced under Sub-Section 2 or Sub Section 3 of Section 40, shall 11 Crl.A.No.32 of 2011 take expeditious steps as provided under Section 41. In the present case the allegation is under Sections 8(1) and (2) of the Abkari Act and the sentence contemplated against such offence is more than 3 years and therefore the accused has to be produced before the competent Magistrate in view of Section 41(2) of the Abkari Act. Accordingly, PW3 who is in charge of the Excise Range, Thiruvalla, produced the accused as well as the contraband article before the Judicial First Class Magistrate court-Thiruvalla, on the next day. When Pws.1 and 2 produced the accused and the contraband article, PW3 has also registered Ext.P5 crime and occurrence report. He had done the same as he was in charge of the Excise Range Office, Thiruvalla. The powers conferred on the Abkari Inspectors or Abkari Officers are with respect to the search, seizure, arrest etc. and in the present case, the arrest was done by PW1 who is a competent officer and he produced the accused and the contraband article in the Excise Range office and PW3 was 12 Crl.A.No.32 of 2011 in charge of the range office, who in turn registered the crime, and therefore there is nothing illegal in PW3 registering Ext.P5 crime report. It is also relevant to note that the subsequent investigation was undertaken by PW4, who is a competent officer and it is PW4 who laid the charge finally. 8. In the light of the above facts, circumstances and the discussion, and in view of the procedure adopted in the case, according to me, the defects pointed out by the defence particularly, regarding the registration of Ext.P5 by PW3 are not legally and precedently sustainable and not sufficient to vitiate the investigation as well as the trial. In the light of the above discussion, according to me the learned Judge of the trial court is fully justified in his finding and convicting the appellant/accused under Section 8(1) and (2) of the Abkari Act and accordingly the conviction recorded against the appellant is confirmed. 9. Regarding the sentence, learned counsel for the 13 Crl.A.No.32 of 2011 appellant submitted that a lenient view may be taken. According to the learned counsel, the appellant/accused, at the time of the alleged offence was, only at the age of 37 and now he is at the age of 44 and nobody to look after his aged mother and children. 10. I have carefully considered the above submission of the learned counsel. It is pertinent to note that the prosecution has no case that the appellant is a habitual offender or he had involved in similar offence previously. The quantity involved in the case is only 1 ½ ltrs. of arrack and the appellant was only at the age of 37 at the time of occurrence. Having regard to the above facts and circumstances, according to me, one year rigorous imprisonment is sufficient to meet the ends of justice and while confirming the fine amount, the default sentence can be reduced into one month rigorous imprisonment. Accordingly, in modification of the sentence imposed by the trial court, the appellant/accused is sentenced to undergo 14 Crl.A.No.32 of 2011 rigorous imprisonment for one year and to pay a fine of Rs.1 lakh and in default he is directed to undergo rigorous imprisonment for one month. Set off is allowed under Section 428 of Cr.P.C. In the result, this appeal is dismissed, confirming the conviction of the petitioner/appellant under Section 8(1) and (2) of the Abkari Act vide judgment dated 15.10.2010 in S.C.No.160/07 of the court of Additional District and Sessions Judge (Adhoc), Fast Tack court-I, Pathanamthitta, but subject to modification of sentence as indicated above. In the light of the above modification of sentence imposed against the appellant, the Registry is directed to forward the Gist of this judgment to the Superintendent, Central Prison, Thiruvananthapuram, for appropriate action. V.K.MOHANAN, Judge ami/