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2010 DIGILAW 184 (KER)

K. K. Joy v. State Of Kerala

2010-03-02

P.S.GOPINATHAN

body2010
Judgment : 1. The revision petitioner is the accused in Sessions Case No.584 of 2003 on the file of the Assistant Sessions Judge, Hosdurg. He was found guilty, after trial by the learned Assistant Sessions Judge, for offence under Section 55 (a) of the Abkari Act. He was sentenced to simple imprisonment for one year and a fine of Rupees one lakh with a default sentence of simple imprisonment for three months. In Criminal Appeal No.170 of 2006, the conviction was confirmed. But the substantive sentence was reduced to simple imprisonment for three months. Default sentence was also reduced to one month. 2. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed and modified in appeal, this revision petition was preferred. 3. The prosecution case in brief is that on 25/4/2001, the Assistant Sub Inspector of Police, Chittarikal Police Station along with Head Constable and Police Constable, who were examined as PWs.1 and 2 were moving on patrol duty. At 9.45 a.m., when they reached near the bus stand complex at Chittarikkal, the revision petitioner was found carrying a bag at his head and a big shopper in his hand. Feeling suspicious, the revision petitioner was intercepted and interrogated. The revision petitioner confessed that the bag and big shopper contained packets of arrack. On examination, the bag contained 150 packets of arrack, each containing 100 ml. of arrack. The big shopper contained 200 packets, each containing 100 ml. of arrack. The revision petitioner was arrested then and there for which Ext.P1 arrest memo was prepared. The contraband along with container was seized. Four packets each from the bag and big shopper were opened and took as samples in bottles, which were sealed then and there. The remaining packets were taken custody as such. Ext.P2 seizure mahazar was prepared. Returning to the Police Station, the Assistant Sub Inspector of Police registered a case as Crime No.51 of 2001. The investigation was taken over by PW6, the then Sub Inspector of Police. After completing the investigation, a charge sheet was laid before the Judicial Magistrate of First Class-II, Hosdurg. On finding that the offence alleged is triable by a Court of Session, after complying with the requisite procedures, committed the case to the court of Session, Kasargod. From there it was made over to the Assistant Sessions Judge, Hosdurg. After completing the investigation, a charge sheet was laid before the Judicial Magistrate of First Class-II, Hosdurg. On finding that the offence alleged is triable by a Court of Session, after complying with the requisite procedures, committed the case to the court of Session, Kasargod. From there it was made over to the Assistant Sessions Judge, Hosdurg. The learned Assistant Judge, after hearing the prosecution and the revision petitioner, a charge for offence under Section 55(a) of the Abkari Act was framed. When it was read over and explained the revision petitioner pleaded not guilty. Hence, he was sent for trial. 4. On the side of the prosecution, PWs.1 to 6 were examined. Exts.P1 to P8 and MOs.1 to 5 series were marked. When questioned under Section 313 of the Code of the Criminal Procedure, the revision petitioner denied the incriminating evidence and further stated that he had no connection with the material objects involved, and that while he was travelling in the bus, he was arrested and the case was falsely registered against him. Though revision petitioner was called upon to enter his evidence, no defence evidence was let in. The Assistant Sessions Judge, on appraisal of the evidence, arrived a conclusion of guilt, as mentioned earlier. 5. The Assistant Sub Inspector of Police who detected the crime is no more. So he could not be examined. PW.1, the Head Constable and PW.2, the Police Constable who were accompanying the Assistant Sub Inspector of Police were examined. PWs.1 and 2 had given supporting evidence. Pw1 had also deposed that at that time the Asst. Sub Inspector was the Station House Officer. Though they were subjected to searching cross- examination, no material was disclosed to disbelieve the arrest and seizure deposed by them. Ext.P2 would support the evidence of PWs.1 and 2. 6. PW.3 was examined as a witness to the arrest and seizure. Though he admitted the signature contained in Ext.P2 as that of his, he denied of having witnessed the arrest and seizure. In the light of the evidence of PWs.1 and 2, supported by Ext.P2, I find that the courts below had rightly appreciated the evidence of PWs.1 and 2 and arrived a conclusion that the revision petitioner was caught red handed with the contra band liquor. Sitting in revision, I fail to find any reason to diverge with the courts below on finding of facts. 7. Sitting in revision, I fail to find any reason to diverge with the courts below on finding of facts. 7. Ext.P8 would show that four sample bottles were forwarded for chemical examination. Ext.P8 would show that all the samples contained ethyle alcohol. The evidence of Pw6 coupled with Ext.P2 would show that two samples each were collected from the bag and big shopper. Pw6 had deposed that thondies were forwarded to the Chemical Examiner and Ext.P8 is the report of the Chemical Examiner. The percentage by volume of ethyl alcohol is 38.78, 39.54, 39.60 and 38.96 respectively. Ext.P8 would convincingly establish that the packets which the revision petitioner were carrying contained ethyl alcohol. So an offence under Section 55(a) of the Abkari Act is established. 8. The learned counsel for the revision petitioner submitted that the contraband was detected by an Asst. Sub Inspector who is not an empowered officer under Sec.4; and in that circumstance the detection and seizure of the contraband are illegal and hence the prosecution is vitiated and despite the oral evidence available, the revision petitioner is entitled to an order of acquittal. 9. The learned counsel, in his support, had given reliance to two decisions of this Court in Sabu v. State of Kerala [2007(4) KLT 169] and Unni v. State of Kerala [2009(2) KHC 661] The latter decision was rendered following the former decision. Going through the decision in Sabu's case it is seen that the detection and investigation were conducted by the Asst. Sub Inspector of Police. In para.11 it is held: "[E]ven if he was empowered as per the provisions of S.2(o) Cr.P.C., he cannot exercise the power conferred on an Abkari Officer. On this score also, the judgment of the Trial Court has to be set aside." In Unni's case, at para.5 it is held: "[S]o, there is much force in the submission of the learned counsel for the accused that PW1 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 PW1 was not empowered to detect and investigate the crime." 10. On the other hand, in this case, the investigation was conducted by the Sub Inspector. The accused in the given facts is entitled to the benefit of doubt since PW1 was not empowered to detect and investigate the crime." 10. On the other hand, in this case, the investigation was conducted by the Sub Inspector. The learned Public Prosecutor submitted that Sec.31 of the Abkari Act empowers a Police Station Officer to search and seize a contraband under the Abkari Act and that the search and seizure were done by the Asst. Sub Inspector in the capacity as Station House Officer. Sec.31 reads as follows: "A Police Station Officer, has reason to believe that an offence under this Act has been committed and that the delay occasioned by obtaining a search warrant under the preceding section will prevent the execution thereof, he may, after recording his reasons and the grounds of his belief at any time by day or night, enter and search any place and may seize anything found therein which he has reason to believe to be liable to confiscation under this Act, and may detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of any offence under this Act." 11. According to the learned Public Prosecutor, Section 2(o) of the Crl.P.C. defines officer in charge of a Police Station and any officer above the rank of a Constable is competent to hold the charge of the Police Station and that the Asst. Sub Inspector in this case was holding the charge of the Police Station. 12. A reading of Sec.2(o) Crl.P.C. would be relevant: "Sec. 2(o). "officer in charge of a police station" includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when, the State Government so directs, any other police officer so present. " 13. A combined reading of Sec.31 of the Abkari Act and Sec.2(o) Crl.P.C. would show that the Asst. Sub Inspector, who is holding charge of a Police Station, is a competent officer to search and seize the contraband. " 13. A combined reading of Sec.31 of the Abkari Act and Sec.2(o) Crl.P.C. would show that the Asst. Sub Inspector, who is holding charge of a Police Station, is a competent officer to search and seize the contraband. It was further submitted that the investigation in this case was conducted by Pw6, the Sub Inspector of Police and that even if it is assumed that the Asst. Sub Inspector was not authorised to search and seizure, the materials disclosed or the illegality of the search would not affect the validity of the seizure or vitiate the evidence collected or the subsequent trial. The learned Public Prosecutor, in support of the argument, canvassed my attention to the decision in Hassan v. State of Kerala (1989(2) KLT 581). 14. Hassan v. State of Kerala, is a case relating to Edible Oil Seeds, Edible Oils, Vanaspati and Baby Food Dealers Licensing Order, 1975. Identical is the provision in Clause 19 of the said order. A Division Bench of this Court held that, 'the Asst. Sub Inspector in case he was authorised to exercise the powers of a Sub Inspector, the search and seizure done by him could not be held illegal and that even if search and seizure are illegal, that would not vitiate the subsequent investigation, further trial and conviction. A reading of paragraphs 20, 21 and 22 would be appropriate. It reads: "20. Learned counsel for the appellant next contended that the Asst. Sub Inspector of Police is incompetent to seize the articles and in the circumstances the trial is illegal and conviction is liable to be set aside. Learned counsel invited our attention to Clause 19 of the Order dealing with search and seizure. It lays down that only an officer of the Civil Supplies Department not below the rank of an Asst.Taluk Supply Officer, or any Officer of the Revenue Department not below the rank of a Deputy Tahsildar, or any police officer not below the rank of Sub Inspector, or any other officer of the Governmentauthorised by the District Collector in this behalf, may with a view to secure compliance with the provisions of this Order or to satisfying himself that the said provisions have been complied with, has power to effect search and seizure. The learned counsel submitted that the Assistant Sub Inspector of Police is below the rank of the Sub Inspector and therefore he has no competence to effect search and seizure. In support of his contention the learned counsel invited our attention to the decisions in Kunhikannan & Others v. Assistant Sub Inspector of Police (1985 KLT 484) and Crl.R.P.No.275 of 1985. It is admitted that there is a notification authorising the Assistant sub Inspector of Police to exercise powers of the S.I. of Police. In the above decisions it was held that authorising or investing an Officer with the powers of a superior officer is one thing and rank is another thing, and since the Assistant S.I. of Police is an Officer below the rank of S.I. He was incompetent to effect a search. In the above decisions the accused were acquitted for the reason that seizure was illegal. As indicated earlier, the learned single Judge before whom this appeal came for hearing doubted the correctness of these decisions and it was for this reason that the matter was referred to a Division Bench. The learned counsel for the appellant argued that R.19 speaks of Police Officer not below the rank of Sub Inspector and therefore the authorisation to the Assistant Sub Inspector by the Government to exercise the powers of Sub Inspector will not invest the Assistant S.I. of Police with power to effect search and seizure. 21. S.13(2) of the Interpretation and General Clauses Act, 1125 lays down as follows: "Where an Act confers a power or imposes a duty on the holder of an office, as such, then, unless the contrary intention appears the power may be exercised and the duty shall be performed by the holder of the office for the time being or by a person duly appointed to act for him or to be in charge of the powers and duties of that office." The Assistant Sub Inspector has been duly empowered to exercise all powers of Sub Inspectors in G.O.(MS)217/73 dated 19.12.1973. In view of sub-section (2) of S.13 of the Interpretation and General Clauses Act, such authorisation is sufficient to confer powers on the Assistant Sub Inspector to exercise the powers of seizure and search in accordance with R.19 of the order. In view of sub-section (2) of S.13 of the Interpretation and General Clauses Act, such authorisation is sufficient to confer powers on the Assistant Sub Inspector to exercise the powers of seizure and search in accordance with R.19 of the order. The provisions contained in S.13(2) of the Interpretation and General Clauses Act do not appear to have been brought to the notice of the learned single Judges who decided Kunhikannan's case (supra) and Crl.R.P.No.275/1985. Further even if search and seizure are illegal that will not vitiate the subsequent investigation, further trial and conviction. 22. A Division Bench of this Court to which one of us is a party (Shamsuddin J.) had occasion to consider this aspect. Following the decisions of the Supreme Court in Balumal Jamnadas v. State of Maharashtra (AIR 1975 SC 2083), State of Maharashtra v. Natwarlal (AIR 1980 SC 593), Dr.Pratap Singh and another v. Director of Enforcement, Foreign Exchange Regulation and others (AIR 1985 SC 989) and also the decision of this Court in Assistant Collector of Central Excise v. Wilfred Sebastian and others (1982 KLJ 670), the Division Bench held in Assistant Collector of Central Excise v. Vasanthakumar (1988(1) KLT 92) that illegality of search will not affect the validity of the seizure or vitiate the evidence collected or subsequent trial. Unfortunately the above decisions were not brought to the notice of the learned single Judges who decided the cases relied on by the learned counsel for the appellant. We are therefore of the view that Kunhikannan's case and Crl.R.P.No.275 of 1985 have not correctly laid down the law on these aspects." In the light of the decision of the Division Bench in Hassan's case, I find that the rulings in Sabu's case and Unni's case are per incurium and have not correctly laid down the law. I find that the arguments advanced by the learned counsel for the revision petitioner is devoid of merit. The evidence of Pw1 that at the time of arrest and seizure, the Asst. Sub Inspector was the Station House Officer; was not even challenged. I find no reason to disbelieve the evidence of Pw1 on that aspect. The Asst. I find that the arguments advanced by the learned counsel for the revision petitioner is devoid of merit. The evidence of Pw1 that at the time of arrest and seizure, the Asst. Sub Inspector was the Station House Officer; was not even challenged. I find no reason to disbelieve the evidence of Pw1 on that aspect. The Asst. Sub Inspector was exercising powers of the Sub Inspector and he was the Police Station Officer and as such he is empowered under Sec.31 of the Abkari Act, read with Sec.2(o) of the Crl.P.C., to arrest and seize the contraband. Therefore, the arrest and seizure was no way vitiated. Even if it is assumed that the Asst. Sub Inspector was not authorised to search and seize, the illegality of the search would not affect the validity of the seizure or vitiate the evidence collected or the subsequent trial in the light of the Bench decision of this Court in Hassan's case which is based on the rulings of the Apex Court referred therein. 15. The conviction under challenge is based upon cogent evidence. Neither arrest and seizure nor the investigation and trial are vitiated. I find no reason to interfere with the conviction. 16. Though the trial court had awarded simple imprisonment for one year, that was reduced to simple imprisonment for three months in appeal. The substantive sentence as modified in appeal is very moderate. The fine imposed is the minimum amount prescribed. The sentence is not at all exorbitant or harsh. There is no room for interfering with the sentence also. In the result, the revision petition is devoid of merit and accordingly it is dismissed. The revision petitioner shall surrender before the trial court forthwith.