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2017 DIGILAW 273 (KER)

Jil v. State of Kerala

2017-02-07

P.UBAID

body2017
JUDGMENT P. Ubaid, J. 1. The appellant herein challenges the conviction and sentence against him under S. 55(a) of the Kerala Abkari Act (for short "the Act") in S.C. No. 11/2011 of the Court of Session Ernakulam. He was prosecuted along with his brother as the second accused, on the allegation that they illicitly stored and possessed huge quantity of spirit at the shed No. 4/109A of the Pallipuram Grama Panchayat which belongs to the appellant. The Sub Inspector of Police, Munambam conducted a search at the said shed on 2.12.2005 on the basis of reliable information. On the basis of the said information, the Police party first searched the house of the father of the appellant, but nothing could be found there. Immediately, they searched the shed No. 4/109A attached to the house building, and on search, the Police seized a huge quantity of 1830 litres of spirit. When interrogated, the accused Nos. 1 and 2 told the Sub Inspector that it was the spirit stored and kept there by three other persons. On the basis of the statements given by the accused Nos. 1 and 2, the Police registered a crime against five persons including the appellant. The allegation in the F.I.R is that the accused Nos. 1 and 2 permitted the accused Nos. 3 to 5 to store and possess huge quantity of spirit at the shed which belongs to the 1st accused. The 1st accused in the F.I.R is the appellant herein, and the second accused is his brother. After investigation, the Police submitted final report against the appellant and his brother, but the other three accused were deleted. The appellant and his brother appeared before the learned Additional Sessions Judge (Ad hoc-III), North Paravur and pleaded not guilty to the charge framed against them under S. 55(a) of the Act. 2. The prosecution examined 11 witnesses, and proved Exts. P1 to P17 documents. When examined under S. 313 Cr.P.C., the accused denied the incriminating circumstances and contended that the shed where the Police conducted search was long back let out to the 5th accused, and that the huge quantity of spirit was kept there by the accused Nos. 3 to 5. The accused Nos. 3 and 4 are the employees and helpers of the 5th accused, according to them. In spite of opportunities granted, the accused did not adduce any evidence in defence. 3. 3 to 5. The accused Nos. 3 and 4 are the employees and helpers of the 5th accused, according to them. In spite of opportunities granted, the accused did not adduce any evidence in defence. 3. On an appreciation of the evidence, the Trial Court found the first accused guilty under S. 55(a) of the Act and found the 2nd accused not guilty. Accordingly, the 2nd accused was acquitted, and the first accused was convicted under S. 55(a) of the Act. On conviction, he was sentenced to undergo simple imprisonment for five years and to pay a fine off 5 lakhs by judgment dated 30.5.2012. Aggrieved by the judgment of conviction, the 1st accused has come up in appeal. 4. When this appeal came up for hearing, the learned counsel for the appellant submitted that the accused Nos. 3 to 5 against whom also the crime was initially registered, were dishonestly deleted by the Police and final report was wrongly filed against the two brothers just because the shed belongs to the first accused. The learned counsel also submitted that the huge quantity of spirit was stored there by the accused Nos. 3 to 5 without the knowledge or consent of the appellant or his father. The learned counsel also submitted that if at all any offence is made out against the accused, he can be punished only under S. 64A of the Act for having permitted the other accused to use the premises for storing or possessing spirit unauthorisedly. 5. On a perusal of the materials, I find force in the submissions made by the learned counsel. Let me examine whether there is any strong evidence to connect the appellant herein with the spirit seized by the Police, except that he is the owner of the shed. 6. As regards seizure of huge quantity of spirit, the defence has no dispute practically. PW1 and PW3 examined as independent witnesses did not support the prosecution. PW 2 is the father, of the accused. His evidence is that the shed where the Police conducted search belongs to his son (the appellant herein) who has some sort of mental infirmity, and that 10 cents of property, wherein the shed is situated was gifted to him long back. PW 2 is the father, of the accused. His evidence is that the shed where the Police conducted search belongs to his son (the appellant herein) who has some sort of mental infirmity, and that 10 cents of property, wherein the shed is situated was gifted to him long back. He also stated that as the 1st accused is not capable of taking care of himself and his affairs, the shed was let out by him to the 5th accused for his business purposes a few months prior to the date of search, under a lease agreement He further stated that the 5th accused had agreed to execute a lease deed, but for some reason or the other, it was delayed. By the time, the Police conducted a search at the premises occupied by the 5th accused. Thus, PW2, practically supported the defence and he did not support the prosecution. His evidence shows that the shed in question was in fact in the possession of the 5th accused as on the date on which search was conducted by the Police. It is pertinent to note that this witness was not declared hostile or cross-examined by the prosecution. There is no explanation why the prosecution did not cross-examine this witness who supported the defence and deposed against the prosecution case. 7. PW 4 has proved Ext. P2 ownership certificate relating to the building No. 4/109A of the Pallippuram Grama Panchayat. His evidence read, along with Ext. P2 will prove that the shed in question belongs to the appellant herein. Of course, on this aspect, there is no dispute. This aspect is further proved by the evidence of PW 8 and the Ext. P5 certificate relating to building tax assessment. 8. PW 9 is the Sub Inspector who conducted search and detected the offence in this case. Ext. P6 F.I.R. was registered by him on the basis of the search, and the seizure made by him. As regards the search and the seizure, there is nothing to doubt about the evidence of this witness. Ext. P6 F.I.R was registered against five persons including the appellant. The prosecution case in the F.I.R is that the huge quantity of spirit seized by the Police was stored or kept at the shed by the accused Nos. 3 to 5 as part of their illicit liquor business, and as against the accused Nos. Ext. P6 F.I.R was registered against five persons including the appellant. The prosecution case in the F.I.R is that the huge quantity of spirit seized by the Police was stored or kept at the shed by the accused Nos. 3 to 5 as part of their illicit liquor business, and as against the accused Nos. 1 & 2, the case in the F.I.R. is that the others were permitted by them to conduct illicit liquor business at the said shed. Investigation proceeded in that line, till another Sub Inspector took over the investigation. At the end of the investigation, when another Investigating Officer took charge, he made a twist when, he could not collect any material or document to connect the accused Nos. 3 to 5 with the huge quantity of spirit. It appears that when he realised that a prosecution against the accused Nos. 3 to 5 would fail for want of materials against them, though the fact is that the spirit was in fact stored by them there, the Sub Inspector deleted them and brought a final report against the accused Nos. 1 and 2. This twist is practically admitted by both the Investigating Officers examined in this case. They are PW 10 and PW 11. 9. The evidence of PW 9 is that till investigation was taken over by PW10, it proceeded on the premise that the accused Nos. 3 to 5 are the main accused who stored or possessed the spirit unauthorisedly at the shed in question, and that the others (A1 and A2) just permitted the accused Nos. 3 to 5 to use the shed for illicit liquor business. When cross-examined during trial, PW10 and PW11 practically admitted that investigation initially proceeded as per the allegations in the F.I.R., but final report was submitted against the accused Nos. 1 and 2 alone only because the Police could not collect any material to implicate the accused Nos. 3 to 5. The evidence given by these two witnesses will indicate that investigation revealed that the huge quantity of spirit was in fact kept there at the shed 4/109A by the accused Nos. 3 to 5 as part of the illicit liquor business of the 5th accused. The defence case is to an extent probabilised by the admissions made by the two Investigating Officers during trial. 10. 3 to 5 as part of the illicit liquor business of the 5th accused. The defence case is to an extent probabilised by the admissions made by the two Investigating Officers during trial. 10. Section 64 of the Abkari Act contains a presumption that it shall be presumed until the contrary is proved that the accused person has committed an offence in respect of any liquor or intoxicating drug or any utensil, implement or apparatus used for the manufacture of liquor, or any other material ordinarily used in the manufacture of liquor, if the accused could not account the possession of such material. Here, the huge quantity of spirit was seized from the shed belonging to the appellant. As regards ownership over the shed, the appellant has no dispute. In view of the seizure of spirit from his shed, the presumption under S. 64 of the Act can be applied against him, and it is for him to rebut the presumption. Until the contrary is proved, or till the presumption is rebutted, it will have to be found that the huge quantity of spirit was stored at the shed by the appellant. 11. Now let us see whether there is any evidence to prove otherwise or to rebut the presumption. It is here the evidence of PW 2, the father of the accused, assumes much importance. The evidence given by PW 2 will definitely rebut the presumption against the accused under S. 64 of the Act, As already stated, the prosecution has no explanation why PW 2 was not cross-examined. He will have to be treated as a loyal witness, and his evidence is fully in support of the defence. He admits that the shed in question belongs to the appellant. He also admitted seizure of huge quantity of spirit from the shed. But he categorically stated that the said quantity of spirit was in fact stored there by the 5th accused, and that the shed was in fact let out by him to the 5th accused months back for his business purposes. His evidence does not show that the appellant had knowledge of the offence committed by the others, or that the others kept or stored spirit there with the knowledge of his son. His evidence shows that the appellant has some mental infirmity, and so the son's affairs are being managed by him. His evidence does not show that the appellant had knowledge of the offence committed by the others, or that the others kept or stored spirit there with the knowledge of his son. His evidence shows that the appellant has some mental infirmity, and so the son's affairs are being managed by him. He came to realise what exactly was the business of the accused only when the Police seized huge quantity of spirit. Thus the undiscredited and unchallenged evidence of PW2 supporting the defence will rebut the presumption against the appellant under S. 64 of the Act. 12. Seizure of spirit from the shed belonging to the appellant is well proved in this case. But conviction under S. 55(a) of the Act is not possible in this case in view of the findings made as regards the person who must have actually kept or stored spirit in the said shed. The conduct of the Police in deleting the accused Nos. 3 to 5 during investigation is really suspicious. It appears that the Police could realise during investigation that the quantity of spirit was in fact stored at the said shed by the 5th accused, and that the said liquor business was being conducted by him with the assistance of the accused Nos. 3 and 4. The Police submitted final report against the accused Nos. 1 and 2 only because definite materials could not be seized to connect the accused Nos. 3 to 5, and not because the spirit was in fact kept or stored there by the accused Nos. 1 and 2. In the above circumstances, I find that the possible conviction in this case can only be under S. 64A of the Act. 13. The learned counsel for the appellant further submitted that even if the case stands proved on facts, the accused will have to be acquitted for the legal reason that the final report in this case was submitted by an incompetent Police Officer. Of course, when such a serious contention is raised by the defence, the findings made by the court on facts will be subject to the findings on the legal aspects. The final report in this case was submitted by the Deputy Superintendent of Police, Narcotic Cell, Ernakulam (Rural). Investigation was also conducted by him. Of course, when such a serious contention is raised by the defence, the findings made by the court on facts will be subject to the findings on the legal aspects. The final report in this case was submitted by the Deputy Superintendent of Police, Narcotic Cell, Ernakulam (Rural). Investigation was also conducted by him. The Government has, under S. 4 of the Kerala Abkari Act, notified different categories of Abkari Officials as Abkari Officers, competent to discharge the various functions under the Kerala Abkari Act. The Government Notification S.R.O.234/1967 would empower only the officials of the Excise Department, from Excise Guard to the Commissioner of Excise, to discharge the various functions under the Kerala Abkari Act. Police Officers or Officers of the other Departments were not given powers as per the said Government Notification. Even Assistant Excise Inspector is not given powers to discharge functions under the Kerala Abkari Act under the said Government Notification. Realising the difficulties and obstacles in enforcing the provisions of the Kerala Abkari Act, the Government of Kerala thought of conferring such powers on Police Officers and also Revenue Officers, under S. 4 of the Kerala Abkari Act, for the discharge of various functions under the Act. Accordingly, in 1996, the Government issued a Notification dated 29.3.1996, (S.R.O.321/1996) appointing 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 as Abkari Officers under S. 4 of the Kerala Abkari Act. Even Revenue Officers of and above the rank of Deputy Collectors are given such powers as per the said S.R.O.321/96. Thus, Police Officers of and above the rank of Sub Inspectors, got powers to discharge functions under the Kerala Abkari Act as Abkari Officers only in 1996 as per the Government Notification, S.R.O.321/1996. Here, detection was made by a competent Police Officer. But the final report was not submitted by a Police Officer-in-charge of law and order and working in the General Executive Branch of the Police Department. Every Sub Inspector of Police or every Police Officer above the rank of Sub Inspector will not get powers as Abkari Officers, to discharge functions under the Kerala Abkari Act, as per the S.R.O.321/1996. But the final report was not submitted by a Police Officer-in-charge of law and order and working in the General Executive Branch of the Police Department. Every Sub Inspector of Police or every Police Officer above the rank of Sub Inspector will not get powers as Abkari Officers, to discharge functions under the Kerala Abkari Act, as per the S.R.O.321/1996. The Government Notification has clearly specified that only Police Officers of and above the rank of Sub Inspectors-in-charge of law and order, and working in the General Executive Branch of the Police Department can discharge the functions as Abkari Officers. Here, the final report was submitted by a Deputy Superintendent of Police of the Narcotic Cell, Ernakulam (Rural). Police Officers of the Narcotic Cell, which is a special wing of the Police Department, cannot be said to be Police Officers-in-charge of law and order and working in the General Executive Branch of the Police Department. Special wing of the Police constituted for special purposes will not come within the purview of the Government Notification appointing Police Officers as Abkari Officers. This Court has settled the legal position in so many decisions like Subrahmaniyan v. State of Kerala, ( 2010 (2) KLT 470 ), Sasidharan v. State of Kerala ( 2012 (2) KLT 392 ), Hashim v. Assistant Sub Inspector, (2014 (2) KLT 346) and Sujith v. State of Kerala (2016 (3) KLT 434 : 2016 (3) KHC 823) that only Abkari Officers specifically authorised and appointed by the Government under S. 4 of the Act can discharge functions as Abkari Officers under the said Act. Sujith v. State of Kerala is a case where investigation in a crime registered under the Act was conducted by a Deputy Superintendent of Police, CBCID, Kottayam, and another Deputy Superintendent of Police, Narcotic Cell, Alappuzha. This court held that investigation conducted by an incompetent officer of the Police Department will vitiate the whole prosecution. This Court also held that a final report submitted by an incompetent person under S. 50 of the Act cannot be accepted by the Court, and such a prosecution brought on the final report filed by an incompetent person will be non est. The prosecution has no explanation why or on what circumstance an incompetent officer happened to conduct investigation and submit final report in report. The prosecution has no explanation why or on what circumstance an incompetent officer happened to conduct investigation and submit final report in report. The legal consequence is that, despite clear evidence proving the facts of the case including arrest, and seizure of contraband articles by a competent officer the whole prosecution would collapse on the ground that it is non est for the simple reason that an incompetent person investigated the crime and submitted final report. In the result, this appeal is allowed. The appellant is acquitted in appeal under S. 386(b)(i) Cr.P.C. on the finding that he is not guilty under S. 55(a) or under S. 64A of the Act. Accordingly, the conviction and sentence against him in S.C. 11/2011 of the court below is set aside, and the appellant is released from prosecution. The bail bond, if any, executed by him will stand discharged.