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2009 DIGILAW 302 (KER)

Unni v. State of Kerala

2009-03-25

S.S.SATHEESACHANDRAN

body2009
ORDER S.S. Satheesachandran, J. 1. The revision is filed against the concurrent verdict of guilty rendered against the accused for the offence punishable under Section 55(a) of the Kerala Abkari Act, hereinafter referred to as the 'Act'. Negativing his plea of not guilty, the learned Assistant Sessions Judge, after trial, convicted him of the offence and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1lakh with default term of simple imprisonment for three months. In appeal, the learned Sessions Judge upheld the conviction and confirmed the sentence without any modification. Aggrieved by the conviction and sentence, questioning its legality, propriety and correctness, the accused has preferred this revision. 2.. The gist of the prosecution case is that, on the evening of 31/10/1998, while conducting patrol duty, PW 1, Assistant Sub Inspector of police, Haripad Police station, got reliable information that the accused was engaged in the sale of illicit arrack in his house, situate in Ward No. VII in Karuvatta Village. PW 1, with a-police party rushed to the spot, and reaching that place, found the accused carrying a jerry can close to the southern courtyard of his house. Seeing the police party, the accused got perplexed and attempted to make himself scarce. He was intercepted and the jerry can found in his possession was examined, which contained five litres of illicit arrack. Sample was collected and sealed at the spot; and the sample and residue were seized preparing Ext. P1 scene mahazar. The accused arrested was later enlarged on bail. The investigation of the crime was conducted by PW 4, the Sub Inspector of Police, Harippad Police Station, and, later, PW 5, the Sub Inspector of the nearby Police Station, who, then, held charge of Harippad Police Station laid the charge against the accused indicting him of the offence punishable under Section 55(a) of the Act. 3. The accused pleaded not guilty when the charges were made known. Prosecution examined PWs 1 to 5, got marked Exts. P1 to P5 and identified MO 1 to prove his case. The accused, when questioned under Section 313 of the CrPC, reiterating his plea of innocence, canvassed a defence that the jerry can was collected by the police from a nearby pond and he was falsely implicated in the crime. He examined one witness, DW 1 to substantiate his defence. P1 to P5 and identified MO 1 to prove his case. The accused, when questioned under Section 313 of the CrPC, reiterating his plea of innocence, canvassed a defence that the jerry can was collected by the police from a nearby pond and he was falsely implicated in the crime. He examined one witness, DW 1 to substantiate his defence. The learned Magistrate, after appreciating the materials tendered in the case, found the accused guilty of the offence charged and he was thereupon convicted and sentenced as indicated above. His conviction and sentence, as already stated, was confirmed in appeal by the Sessions Judge. 4. Before me, the learned counsel for the revision petitioner/accused assailed the concurrent finding of guilt passed against the accused as illegal and unsustainable contending that the prosecution of the accused for the offence under Section 55(a) of the Act, had proceeded on the basis of detection of the crime by an unauthorised person, an Assistant Sub Inspector of Police, who had no sanction to detect or investigate a crime under the Abkari Act. Inviting my attention to SRO No. 321/1996, the learned counsel contended that only police officers of and above the rank of S.I. of police in charge of law and order and working in the General Executive Branch of the Police Department apart from the Revenue Officers mentioned in the notification, are competent to conduct detection and investigation of the Abkari offences. The decision rendered by this Court in Sabu v. State of Kerala, 2007 (4) KLT169wasreliedbythecounsel to substantiate his challenge that PW 1, Assistant Sub Inspector of Police, had no authority to detect or to seize the contraband involved in an Abkari offence. The learned counsel also urged that there is no acceptable legal evidence to prove the indictment levelled against the accused other than the interested testimony of PWs 1 and 2, the Police Officers involved in the detection of the crime and seizure of the contraband. Independent witness examined by the prosecution, an attester to Ext. P1 mahazar, had turned hostile to its case. The uncorroborated version of the police officials, according to the learned counsel, is not sufficient to prove the guilt of the accused. The delay in production of the contraband and sample collected before the Court is also raised by the counsel to assail the conviction, contending that such delay has caused prejudice to the accused. The uncorroborated version of the police officials, according to the learned counsel, is not sufficient to prove the guilt of the accused. The delay in production of the contraband and sample collected before the Court is also raised by the counsel to assail the conviction, contending that such delay has caused prejudice to the accused. Prosecution has not only not explained the delay, it has not even accounted for who retained the residue and sample till its production before the Court, is the submission of the counsel. Conviction of the accused in the facts and circumstances, according to the counsel, is liable to be set aside. On the other hand, the learned Public Prosecutor submitted that PW 1, the Asst. Sub Inspector of Police was in charge of the Harippad Police station as the Sub Inspector was then on leave. PW 4 has deposed to that aspect, which was found acceptable and convincing to both the Courts below. Though no documentary evidence was produced by the prosecution to show that PW 1 was in charge of the station, there was absolutely no reason to doubt the sworn testimony of PW 4, a responsible Police officer, is the submission of the Public Prosecutor. In the production of the contraband seized before the Court, there was not much delay, and, at any rate, it has not been shown that any prejudice was caused to the accused by the delay in production of the contraband, submits the Public Prosecutor. Conviction and sentence imposed against the accused in the proved facts of the case, it is submitted, do not call for any interference. 5. To prove the guilt of the accused for the possession of the contraband, that is, five litres of arrack in a jerry can, as alleged, the prosecution relied entirely on the evidence of two Police officers connected with the detection and seizure of the contraband, who were examined as PWs 1 and 2. PW 1, Asst. S.I. of Police, who detected the crime and seized the contraband, had no authority to do so, is the attack raised by the learned counsel for the accused, relying on the notification of SRO No. 321/1996 and also the decision rendered by this Court in Sabu v. State of Kerala, 2007 (4) KLT 169 . PW 1, Asst. S.I. of Police, who detected the crime and seized the contraband, had no authority to do so, is the attack raised by the learned counsel for the accused, relying on the notification of SRO No. 321/1996 and also the decision rendered by this Court in Sabu v. State of Kerala, 2007 (4) KLT 169 . If it was a case of accidental detection without prior information, then it could be stated that any police officer was expected to prevent the commission of any offence and taking the offender into custody. But this was a case, even according to the prosecution, PW 1, the Asst. S.I. of Police received prior information of sale of illicit arrack in the residential building of the accused. He proceeded to that spot, pursuant to that information indicated that he went there to have a raid of the building, and, search the place. When a raid over the residential building for detection of Abkari offence is involved, necessarily and inevitably the mandate covered by Section 31 of the Act applies with full force. There is nothing in evidence to show that PW 1 complied with the formalities for conducting a search over the residential building of the accused. Immediately on getting information, he rushed to the spot and reaching there, found the accused with a jerry can beside the courtyard of his building, seized the contraband into custody and arrested him, is the prosecution case. As per Section 4 of the Abkari Act, the Government had authorised only certain Officers of the State to detect or investigate the offences contemplated under the Abkari Act. The Asst. S.I of Police, as per the notification issued by the Government, is not authorised nor empowered to detect or investigate the abkari offences. Having regard to the fact that PW 1 went over to the residential building of the accused pursuant to information that sale of illicit arrack was conducted there, prima facie, indicating that he went over to proceed with a search of that building, that too, without complying with the formalities, it follows that whatever acts performed by him pursuant to reaching the spot could not be taken as having been done with the sanction of law. No doubt, illegality or irregularity in a search will not by itself vitiate the evidence collected by the search and there is no bar in relying upon the evidence collected in such search to inculpate the accused. But in the given case, what has come out is that the prosecution at a later stage had developed a case that at the relevant time, PW1, the Asst. S.I. of police was in charge of the police station, and as such he was competent to detect a crime and seize the contraband. PW 1 has no such case when he was examined before the Court. So much so, the assertion of PW 4 that PW 1 at the relevant time was in charge of the S.I. of police since that officer was on leave cannot be given much value. So, there is much force in the submission of the learned counsel for the accused that PW 1 was not an authorised officer competent to. detect and investigate an offence under the Abkari Act, and as such the detection made by him was unauthorised. The accused in the given facts is entitled to the benefit of doubt since PW 1 was not empowered to detect and investigate the crime. So much so, it has to be concluded that the conviction and sentence imposed against the accused are liable to be set aside, and I do so. The accused is found not guilty and acquitted of the offence under Section 55 (a) of the Abkari Act. Fine amount, if any, remitted by the accused shall be refunded to him. Appeal is allowed.