IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 CRL.A.No. 184 of 2003() ----------------------- SC.219/2000 of THE COURT OF THE ADDL. DISTRICT AND SESSIONS JUDGE FAST TRACK (ADHOC II), KOZHIKODE. .................... APPELLANT: ACCUSED: ------------------- SUBASH, S/O. GANGADHARAN, KIZHAKKE AKETHU, CHERODE AMSOM, KURIYADI DESOM, VATAKARA TALUK. BY ADV. SRI.P.NARAYANAN RESPONDENT: COMPLAINANT: ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.K.C.SANTHOSHKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.M.P. No. 1051/2003 in Crl.A.No. 184/2003 Dismissed. Sd/-J.B. Koshy, Judge. 25th February,2008 Sd/-K. Hema, Judge. mn. J.B. KOSHY & K. HEMA, JJ. -------------------------------------------- Crl.Appeal No. 184 of of 2003 -------------------------------------------- Dated this the 25th day of February, 2008. JUDGMENT Koshy, J: Due to the apparent conflicting views taken by the learned Single Judges in the decisions reported in Vikraman v. State of Kerala (ILR 2006(4) Kerala 932) and Sabu v. State of Kerala [2007 (3) KLJ 157] this case is referred to the Division Bench. The question to be answered is whether Magistrate can take cognizance of an offence under the Abkari Act on the basis of a report filed by Assistant Sub Inspector of Police, who is not an Abkari Officer as defined under the Abkari Act. 2. This appeal is filed against the judgment in S.C.No.219 of 2000 on the file of the District and Sessions Court, Fast Track (Ad hoc- Crl.A.184/2003 2 II), Kozhikode. Appellant faced trial for offence under Section 55(a) of the Abkari Act. The report (concerned) was filed by Assistant Sub Inspector of Police, Edacheri Police Station. The allegation was that the appellant was found in possession of 19 bottles, each containing 180 ml. (total 35 litres) of Indian made foreign liquor without having permit or the sticker of Kerala State Beverages Corporation as against the provisions of the Abkari Act and Foreign Liquor Rules and therefore he committed offence under Section 55(a) of the Abkari Act. According to prosecution, he was found in possession of imported liquor and he was possessing the same in the course of import illegally violating the provisions of the Abkari Act and the Rules made thereunder. The Magistrate came to the conclusion that the appellant was guilty of the offence under section 55(a) of the Abkari Act and he was convicted thereunder and sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for another 6 months. The appellant denied the entire charges. Apart from the above, it was contended that even if he was found in possession of 19 bottles each containing 180 ml. of Indian made foreign liquor, there is no evidence to show that it was imported. He was alleged to have been found in Crl.A.184/2003 3 possession of the same near a bus stop. He was not transporting the above item from Mahe as alleged. It was further contended that it was in evidence that he was not possessing the same in the course of import. It was further contended by him that the total quantity was possessed below 3½ litres of foreign liquor and possession of the above is not punishable at all and at the maximum only under section 63. But the fact that no sticker of the Beverages Corporation is found in the bottle showing that it is either imported illegally or manufactured without licence. Apart from the above, the main contention raised by the appellant was that the officer who filed the report is not an Abkari officer and the entire proceedings are vitiated. He based his argument on section 50 of the Abkari Act, which reads as follows: “Section 5o. 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 the Code of Criminal Procedure, 1973 (Central Act 2 of 1974). It shows that the Magistrate can take cognizance only on the basis of a Crl.A.184/2003 4 report filed by the Abkari Officer. The very jurisdiction of the Magistrate to try the case starts from filing of a report under section 173 (2) of the Abkari Act by the Abkari Officer. An Abkari Officer is defined under sub-section (2) of section 3, which reads as follows: “Abkari Officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Section 4 or 5.” The Government by notification dated 29.3.1996 authorized all police officers above the rank of Sub Inspector of Police to discharge all the duties conferred on an Abkari Officer in this context. The notification G.O.(P) No.69/967TD dated 29.3.1996(S.r.O.No.321/96) reads as follows: “In exercise of the powers conferred by S.4 of the Abkari Act, I 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 Ss.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 Offices in the Sections aforesaid.” 3. Here, admittedly, the report was filed by he Assist Sub Crl.A.184/2003 5 Inspector of Police. There was no evidence to show that he was invested with the powers of Sub Inspector of Police or an abkari officer Here, Sub Inspector was there in the office and Assistant Sub Inspector was not doing the duty of Sub Inspector in the absence of the Sub Inspector. He was not in charge of the police station. There is no evidence too show that he was in any way an authorized Abkari officer. Learned counsel pointed out that since very stringent punishment is provided in the Abkari Act and in the criminal law, the provisions of the Abkari Act should be strictly complied with. 4. Section 55 of the Abkari Act is a penal provision. Minimum fine is Rs.1,00,000/- apart from compulsory imprisonment. How such a penal provision should be interpreted is considered by a Division Bench of this Court in Mohanan v. State of Kerala (2007(1) KLT 845 at paragraph 8 which reads as follows: “8. It is settled proposition that statute imposing criminal or other penalty shall normally be construed narrowly in favour of the person proceeded against especially when the punishment provided is monstrous. This rule has been stated by Mahajan, C.J. As follows: “If two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. It is not competent to the court to stretch the meaning of an Crl.A.184/2003 6 expression used by the legislature in order to carry out the intention of the legislature,” (Tolaram Relumal & Anr. v. State of Bombay (AIR 1954 SC 496)”. On the principle that penal provisions are strictly construed it was held by the Apex Court that “contravention of conditions of a licence granted under a Statutory Order cannot be construed as Contravention of the Order resulting in penal consequences, unless the order itself provides that the licensee shall comply with all the conditions of the licence”. (East India commercial Co. Ltd. Calcutta & Anr. v. Collector of Customs (AIR 1962 SC 1893) See also : W.H.King v. Republic of India & Anr. (Air 1952 SC 156 at page 158). Applying the above principle of strict interpretation, penal provisions for contravention of rules made under an Act cannot be construed and applied for contravention of the Act as held by the Supreme Court in Becker Gry and Co. Ltd. & Ors. v. Union of India & Anr. [(1970) 1 SCC 352). (See also: Tolaram Relumal & Ar. v. State of Bombay (AIR 1954 SC 496)” 5. It is further argued that when special provisions are enacted for trial of abkari cases, those provisions should be complied with. Various decisions of the Supreme Court were cited by learned counsel for the appellant including A.R.Antulay V. Ramdas Sriniwas Nayak and another (1984 SCC (Cri) 277) and all those decisions were considered by this bench in Moosakoya v. State of Kerala [2008 (1) KLT 538]. It reads as follows: “5. It is true that 'offence' as defined under S.2(n) of the Cr.P.C. includes offences mentioned in special law also. Ss. 4 and 5 of Cr.P.C. Crl.A.184/2003 7 make the procedure laid down in the Code applicable to all offences under the Indian Penal Code unless special statute provides a special or separate procedure . Ss.4 and 5 are as follows: “4. 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. (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 dealt with such offences. 5. Saving:- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.” It was held by the Apex Court in Khatri & Ors. v. State of Bihar & Ors. (AIR 1981 SC 1068) that in view of S.4 of Cr.P.C. the provisions of the Criminal Procedure Code are applicable when the offence under the Indian Penal Code or any other law is being investigated or enquried or proceeded with trial or otherwise dealt with. But, if a special law provides a special procedure, that procedure will prevail as held by the Apex Court in Directorate of enforcement v. Deepak Mahajan and Anr. (AIR 1994 SC 1775) and A.R. Antulay v. Ramdas Sriniwas Nayak & Anr (AIR 1984 SC 718). Apex Court in Major G.S. Sodhi v. Union of India (1991 Crl.L.J. 1947 SC ) held that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with the offence, the general power under the Code is subject to such special enactment and in Crl.A.184/2003 8 interpreting the scope of such statute that dominate purpose of enacting the statute also has to be borne in mind (See also: Jomon v. State of Kerala (1987 (2) KLT SN 37 (C.No. 52) = 1987 (2) Crimes 920) and Sukhdev Singh Sodhi v. The Chief Justice and Judges of the Pepsu High Court (1954 Crl.L.J. 460 SC). When a special power is conferred under S.23 of the Sand Act read with Rr.27 and 28 for seizure and a specific procedure to be followed after the seizure, that procedure has precedence over the general power and procedure. The application of maxim Generalia Specialibus non derogant (general statements or provisions do not derogate from special statements or provisions). On the other hand, specialia derogant generalibus (special provisions derogate from general). If a special provision or procedure is made on certain matter, that matter is excluded from general provision as held by the Supreme Court in Gadde Venkateswara Rao v. Government of A.P. & Ors. (AIR 1966 828). In Jasbir Singh v. Vipin Kumar Jaggi & Ors. (2001 (3) KLT 346 (SC) = AIR 2001 SC 2734) it was held by the Apex Court that S.64 of the NDPS Act will prevail over S.307 Cr.P.C., 1974 as it is a special provision. Same principle was followed in P.V.Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda (AIR 2002 SC 2445). In this connection, we also refer to paras. 60 and 61 of the Apex Court judgment in Ghaziabad Zilla Sahkar Bank Ltd.v. Addl. Labour Commissioner & ors. (207) AIR SCW 956).” 6. Hence while dealing with abkari offence the special provisions made in the Abkari Act should be strictly followed. Learned Government Pleader cited decision of a Division Bench of this Court in Hassan v. State of Kerala (1989 (2) KLT 58) wherein it was held that investigation by Assistant Sub Inspector of Police will not vitiate the trial. It was also stated that there was a notification by the Government empowering the Assistant Sub Inspector to exercise all Crl.A.184/2003 9 powers of the Sub Inspector. The above notification is published in 1973 as G.O.MS 217/73. Coupled with Section 13(2) of the Interpretation and General Clauses Act, the Assistant Sub Inspector in this case be specifically authorized to do the act of Sub Inspector. But there is no such notification issued under the Abkari Act. None of the provisions in the Abkari Act gives power any authority to issue such notification. Even C.R.P.C. does not contain any such provision conferring the Government to issue notification conferring power of an officer to any other inferior officer under section 36, when only a Superior Officer to exercise power of the officer in charge of a police station. The Allahabad High Court in Ram Pargas V. Emperor (AIR 1948 All 129), while interpreting section 19 of the General Clauses Act held as follows:- “The subordinate entering into the real functions of his superior by authority of law is one thing, but the subordinate using the powers vested in the superior without a legal sanction of delegated of authority by the superior is quite another. The section protects the former but not the latter incident. Section 7 of the Extradition Act conferred the power of issuing a warrant for extradition proceedings on the political agent, but when a warrant for extradition was issued not by the political agent but by another officer subordinate to the political agent, and there as no provision in the Act for delegation of powers by the political agent to any other functionary working under him, it was held by the High Court of Allahabad that the warrant Crl.A.184/2003 10 thus issued by an officer other than the political agent was illegal”. Further when it specifically states that Abkari Officer must be a police officer above the rank of Sub Inspector and that a police officer below the rank of Sub Inspector of Police cannot be termed as the Abkari Officer. Apart from the above, the learned Public Prosecutor was not able to produce the notification mentioned in Hassan's case. Further, we also note that in Hassan's case a Divisions Bench of this court was considering the question regarding Edible Oil Seeds, Edible Oils, Vanaspati and Baby Food Dealers Licensing Order, 1975. There, Sub Inspector was authorized to conduct search and investigation. But there was no provision like filing of a report before the court by an officer below the rank of S.I. of Police. Irregularity in investigation is considered under section 527 as held by the Apex Court in H.N.Rishbud and Inder Singh V. State of Delhi (AIR 1955 SC 196). Irregularity in investigation is different from lack of power to initiate prosecution . Section 50 of the Abkari Act says that as soon as the investigation into the offences under this Act is completed, the Abkari Officer shall forward the 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. The Assistant Sub Crl.A.184/2003 11 Inspector in this case was not even holding charge of Sub Inspector or officiating as Sub Inspector at the time of filing the report. Therefore Section 13(2) of the Interpretation and General Clauses Act, 1125 also will not enable the Asst. Sub Inspector of Police as an officer of the rank of Sub Inspector of Police, not below the rank of Sub Inspector of Police mentioned in the Statute. It was also contended by learned counsel for the appellant that power to conduct investigation and power to prosecute are different powers as held in Raj Kumar Karwal v. Union of India and Ors. [1990) 2 SCC 409 – para 22]. Mere illegality or irregularity of investigation will not vitiate the trial. It is well settled principle that a defect or illegality in investigation however serious has no direct bearing on the competence or procedure relating to cognizance or trial. But that is different from taking cognizance of the offence on the basis of a report by an officer not authorized under law. The Magistrate has no power to take out cognizance of the case on the report of an officer other than an Abkari Officer and it wil go to the root of the matter. In this connection we refer to paragraph 22 page 300 in A.R. Antulays case (Supra). In this connection, we also refer to the decision of the Apex Court in in H.N.Rishbud and Inder Singh V. State of Delhi (supra). Learned counsel also referred to the decision in Crl.A.184/2003 12 Varkey v. State of Kerala [1993 (1) KLT 72]. In that case, since the Excise Inspector who filed the complaint having no authority to file such complaint, a Division Bench of this Court held that the trial was vitiated. A Full Bench of this Court in State of Kerala V. V.P.Enadeen (AIR 1971 Ker. 193) held that a Magistrate has no jurisdiction to take cognizance of an offence upon a complaint filed by a person not authorized to institute prosecution under section 28(1) of Prevention of Food Adulteration Act and the Magistrate cannot either acquit or convict the accused as he cannot take cognizance of the offence on the report filed by a person not authorized to institute prosecution. In paragraph 3 of the above decision It is held as follows:- “3. We might at the outset observe that, although the learned magistrate called it an acquittal, what he actually did was to discharge the accused from the case and not acquit him. If, as he thought, the complainant was not a person authorized to institute a prosecution under Section 20(1) of the Act, the magistrate had no jurisdiction to take cognizance of the case. He could no more acquit than he could convict. But, however, that might be, since the learned magistrate purported to acquit the accused, we should think that section 417 of the Criminal Procedure Code is attracted. The question is, however, only academic since even if Section 417 is not attracted because there is no acquittal Section 439 would, and, ex hypothesi, the bar in sub-section (4) thereof against the conversion of a finding of acquittal into one of conviction would not apply.” 7. In Vikraman v. State of Kerala [2007 (1) KLT 1010] it was held Crl.A.184/2003 13 that the mere fact that Assistant Sub Inspector conducted later part of investigation and laid charge will not vitiate the trial. We are of the opinion that on the plain reading of section 50 of the Abkari Act, the Magistrate has no jurisdiction to take cognizance of the case as a report filed by a person other than an Abkari Officer. Here Vikraman's case cannot be acceptable for an authoritative decision that despite the mandate in section 50. In this connection we also refer to section 199(1) and section 461(d) of Cr.P.C. An officer other than Abkari Officer as defined in the Act cannot file a report even if investigation is conducted by an Abkari Officer. When a report by a specifically empowered officer is a condition precedent for taking cognizance of an offence, trial on a report by Assistant Sub Inspector of Police is void. In this connection we refer to the following decisions:- Harikrishna V. State of Haryana (1974 Crl.LJ 112 - page 11), M/s. Lachman Singh and brothers and another V. The Labour and Enforcement Officer (Central) and another (1986 (3) Crime 17 A.P.). Lack of total jurisdiction for taking cognizance of an offence other than specially empowered officer is not an irregularity covered under Chapter XXXV of Cr.P.C. According to the counsel for the appellant, if it is an irregularity also vitiate the proceedings in view of section 461(k) of Cr.P.C. Here there Crl.A.184/2003 14 is a total illegality in taking cognizance as the report filed by an officer who is not empowered to do so. Even when the minimum fine to be imposed for the offence charged is Rs.1,00,000/- and punishment is very hardship, we cannot understand why Sub Inspector or investigating officer specifically authorized as Abkari Officer was not able to file report. Hence, we are of the view that since the report was filed not by an Abkari officer, the cognizance of offence taken by the Magistrate was illegal and the Magistrate ought to have discharged the accused. Hence, the entire proceedings from taking cognizance trial and sentence etc. are illegal. 8. Learned Government Pleader submitted that there are many other similar cases where actually report was filed by Assistant Sub Inspector of Police and trial has not yet commenced. In such cases, Magistrate can discharge the accused and return the defective report and defects can be cured and Abkari Officer as defined in the Act can file report according to law as observed by the Full Bench of this Court in State v. V.P.Enadeen [AIR 1971 Kerala 193). 9. Appeal is allowed. The trial, conviction and sentence in this case are set aside and the appellant is discharged for lack of jurisdiction in taking cognizance of the case by the Magistrate in the Crl.A.184/2003 15 absence of a report filed by the Abkari Officer as defined under section 5(2) who is specially empowered under section 50 of the Abkari Act. J.B.KOSHY, JUDGE. K. HEMA, JUDGE. Krs Crl.A.184/2003 16 J.B. KOSHY & K. HEMA, JJ. -------------------------------------------- Crl.Appeal No. 184 of of 2003 -------------------------------------------- Dated this the 25th day of February, 2008. JUDGMENT