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2018 DIGILAW 431 (KER)

Mari Dhorai S/o Karuppaswami v. State of Kerala

2018-06-11

MARY JOSEPH

body2018
JUDGMENT : This appeal is directed against the judgment dated 03.05.2006 of the Additional Sessions Judge (Ad hoc-I), Thodupuzha (for short 'the court below') in SC No.329/2004. Two accused involved in the case were found guilty by the court below for the offence punishable under Section 8(1) of the Abkari Act (for short 'the Act') and each of them were convicted under Section 8(2) of the Act and sentenced to undergo rigorous imprisonment for two years and pay fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for one year each. 2. The case of the prosecution was to the following effect: On 16.11.2002, on getting information that sale of illicit arrack was carried on in the shed situated in the property of one Mari Dhorai in Ward No.IV of Marayoor Panchayat at Chinnavara kara in Marayoor Village, the Assistant Sub Inspector of Police, Marayoor Police Station along with three Constables proceeded to the spot. When they reached at the spot, they found a shed therein. Prior to the conduct of necessary examination, a search memorandum was prepared by the Assistant Sub Inspector of Police and forwarded to the Court. Thereafter the shed was examined. A black plastic tank having the capacity of 200 liters was found, containing liquor more than half inside. Two empty Cans having the capacity of 35 liters and one Can of 20 liter capacity with the smell of illicit liquor was also found in the shed. Two persons were found inside the shed and one among them was found engaged in transferring the liquor from the tank in Cans using a funnel and mug. The 2nd accused was found in possession of a Can having capacity of 10 liter filled with liquor. The liquor was smelled and tasted and convinced it as illicit arrack. Both the accused were arrested, after making them convince about the grounds of arrest and questioned. Thereafter samples have been drawn in two bottles having one litre capacity and those were sealed and labelled with labels containing the signatures of the accused, independent witnesses arrived there and the Assistant Sub Inspector. Thereafter a seizure mahazar was prepared and got attested by independent witnesses. The accused along with the properties seized and the samples drawn therefrom were taken to the Police Station, Marayoor. Thereafter a seizure mahazar was prepared and got attested by independent witnesses. The accused along with the properties seized and the samples drawn therefrom were taken to the Police Station, Marayoor. After reaching the Police Station, Crime No.174/2002 was registered alleging commission of the offence under Section 8(1) punishable under Section 8(2) of the Act. A forwarding note and property list were prepared from the police Station and the properties have been forwarded to the Judicial First Class Magistrate Court, Devikulam. Investigation was conducted by PW5 himself and on concluding the same, a final report was prepared, chargesheeting both the accused for the offence as aforesaid and the same was laid before the Judicial First Class Magistrate Court, Devikulam. The final report was received on file by the Magistrate. Having convinced that the offence involved being exclusively triable by a Court of Sessions, the same was committed to the Court of Sessions, Thodupuzha, wherefrom it was made over to the Additional Sessions Court, Thodupuzha and further for trial to the court below. 3. The learned Public Prosecutor and the learned counsel representing the defence were heard on framing of charges. Charge was framed for the offence under Section 8(1), punishable under section 8(2) of the Act. It was read over and explained to both the accused, they denied the allegations in the charge against them and claimed to be tried. Accordingly the trial was held. 4. On the side of the prosecution, 5 witnesses were examined and 5 documents were marked respectively as PW1 to PW5 and Exts.P1 to P5. Exts.C1 and C2 were also marked as Court Exhibits. Properties involved in the case were marked as MO1 to MO3, MO4 series, MO5 & MO6. After closure of the prosecution evidence, both the accused were questioned under Section 313 (1) (b) Cr.P.C. They denied all questions put to them and the first accused stated in addition that the ASI of Police had hired the vehicle driven by him, following which a wordy altercation was occurred among them. Two days later he was called to the Police Station and falsely implicated in the case. 5. Reasons having not been made out to record an order of acquittal under Section 232 Cr.P.C., the accused were directed to enter on their defence. No evidence was adduced by both of them. Two days later he was called to the Police Station and falsely implicated in the case. 5. Reasons having not been made out to record an order of acquittal under Section 232 Cr.P.C., the accused were directed to enter on their defence. No evidence was adduced by both of them. After hearing the learned Public Prosecutor and the respective counsel representing the accused and appreciating the evidence on record the court below found both the accused guilty of the offence punishable under Section 8(1) and convicted and sentenced each of them under Section 8(2) of the Act. Aggrieved by the said judgment that the accused are now before this Court challenging the same on various grounds as hereinbelow mentioned: i. A search memo though claimed by the prosecution to have been prepared in the case on hand the same does not find a place in the documentary evidence let in by the prosecution. For want of the said document in evidence, the very preparation of the same is doubtful and the search held cannot be said to be legal. ii. A delay of 9 days was occurred for production of the properties seized, before the court. The delay is inordinate and a valid and reasonable explanation has not been tendered by the detecting and seizing officer. iii. The independent witnesses did not support the case of the prosecution and as such, Section 36 of the Act is violated. iv. Arrest memo and arrest notice are not forthcoming in evidence and the arrest of the accused suffers for want of compliance of the requisite formalities. v. The arrest, search, seizure and other formalities are held by the ASI of Police, Marayoor Police Station, who is not an Abkari Officer empowered by the Government under Section 4 of the Act. vi. The prosecution has totally relied on the evidence of official witnesses to establish the finding of guilt of the accused. But the version tendered by the official witnesses contradicts each other on material aspects itself and therefore, the court below ought not to have relied on those to enter into the finding of guilt of the accused. 6. Sri. T.V. George advanced arguments based on the aforesaid grounds and canvassed for a reversal of the judgment under challenge. 7. Per contra, Smt. M.N. Maya the learned Public Prosecutor has confined her argument based on Section 31 of the Abkari Act. 6. Sri. T.V. George advanced arguments based on the aforesaid grounds and canvassed for a reversal of the judgment under challenge. 7. Per contra, Smt. M.N. Maya the learned Public Prosecutor has confined her argument based on Section 31 of the Abkari Act. She invited the attention of the court to the words “Sub Inspector or Police Station Officer....”, in the provision to contend that PW5, the Assistant Sub Inspector was acting as the Police Station Officer of Marayoor Police Station on the day when the alleged seizure was effected and therefore being a Police Station Officer, was competent under section 31 of the Act to conduct the search and seizure. According to her, search, seizure, sampling and investigation in the case on hand were conducted by PW5 strictly in conformity with the legal formalities contemplated by the provisions of the Act and interference with the impugned judgment is totally uncalled for. 8. In the case on hand, after getting a reliable information that sale of illicit arrack is progressing in the house of one Maridorai, the first accused, PW5 and other officials had proceeded to the spot. Since the information was that illicit liquor is kept for sale at the house, search of the house was necessary and any of the officials specified under Section 31 of the Abkari Act are empowered to transact in the manner stated therein. 9. Therefore, if the official has reason to believe that an offence under the Act has been committed and that the time taken to obtain a search warrant would defeat the execution, it is left open to him to proceed to conduct the raid after recording his grounds of belief and to seize anything found therein which he has reason to believe to be liable for confiscation under the Act, and to detain, search and arrest any person whom he has reason to believe to be guilty of any offence under the Act. PW5 does not have a case that any reasons or grounds of belief have been recorded by him prior to the conduct of raid at the house allegedly belongs to the first accused. Therefore, the search having been conducted by PW5 without obtaining the search warrant or without recording the reason or grounds of belief is illegal. 10. PW5 does not have a case that any reasons or grounds of belief have been recorded by him prior to the conduct of raid at the house allegedly belongs to the first accused. Therefore, the search having been conducted by PW5 without obtaining the search warrant or without recording the reason or grounds of belief is illegal. 10. The contention of the learned counsel was that in view of want of independent evidence to support the prosecution case, Section 36 of the Act is violated. Section 36 of the Act provides that search has to be conducted in accordance with the provisions of the Code of Criminal Procedure. The proviso to Section 36 of the Act states that the persons called upon to attend and witness searches conducted under the Act shall include atleast two persons, neither of whom is an Abkari, Police or Village Officer. It is clear from the version of PW5 that more than one independent witnesses were available at the spot to witness the search held therein. Even going by Ext.P1 seizure mahazar, two independent witnesses were found to have affixed their signatures therein. One among the attestors to Ext.P1 seizure mahazar was examined before the Court as PW2. It is true that PW2 had denied to have witnessed the search and seizure of the contraband from the spot. But the signature found in Ext.P1 seizure mahazar was admitted by him as his own. Therefore, the case on hand is not one wherein not more than one independent witnesses were not available. Even in a case wherein independent witnesses were not available, that will not vitiate the trial, if materials brought on record justify the conviction, as held by a Division Bench of this Court in Madhavan v. Excise Inspector [ 2000 (1) KLT 311 ]. The dictum reads : “Requirement under the proviso is clearly linked with the procedure to be followed while conducting search and that is in terms of the Code. Category of persons to be called upon to attend and witness the search is indicated in the proviso and they have really nothing to do with mandatory or directory nature of the provision. It is clear that S.36 only provides safeguard to accused during search and even if there is any infraction, that will not vitiate the trial if materials brought on record justify the conviction. It is clear that S.36 only provides safeguard to accused during search and even if there is any infraction, that will not vitiate the trial if materials brought on record justify the conviction. It is for the Court to decide what weightage can be attached to the evidence in that regard.” In view of the dictum supra, want of independent evidence would not vitiate the trial, if other evidence available on record justify the conviction. Therefore, the contention of the learned counsel in that regard is discarded as untenable. 11. PW5 does not have a case that prior to the arrest of the accused, arrest notice and arrest memo were prepared by him and forwarded to a near relative or friend of the accused. The documentary evidence on record also did not take in such a document. Therefore, the contention of the learned counsel that the arrest of the accused held in the case on hand is vitiated by a legal flaw is sustainable. 12. The properties along with the seizure mahazar prepared by him from the spot and other documents prepared from the Police Station were well evidenced from the documents available on record, as forwarded late by 9 days from the date of seizure. The reason for the delay was stated by PW5 as workload at his office. It cannot be taken as a cogent reason since while being empowered as an Abkari Officer under the Act, he is expected by the relevant provisions of the Act to transact as a responsible officer. Subsection (3) of Section 40 is relevant in the context and is extracted hereibelow : “(3) Every person arrested under section 31 or section 34 or section 35 shall be produced before, and article seized under section 31 or section 34 shall be forwarded to, without unnecessary delay,- (a) to the officer in charge of the nearest Police Station; or (b) to the officer empowered under Section 5A, or to the Abkari Inspector.” 13. The words 'without unnecessary delay' found in the provision supra gives an indication that an officer, who is forwarding the properties to the Court with delay, is bound to explain the same with cogent reasons. The words 'without unnecessary delay' found in the provision supra gives an indication that an officer, who is forwarding the properties to the Court with delay, is bound to explain the same with cogent reasons. In the case on hand, it is revealed from the version of PW5 that the accused was produced before the Court on 17.11.2002, the day immediately succeeding to the date of seizure, but the properties were produced before the court only on 25.11.2002. Therefore, despite the busy schedule of work, PW5 had managed to produce the accused before the Court on 17.11.2002, but the properties were not forwarded on the day. The nature of the work in which PW5 was engaged for the days, to restrain him from producing the properties along with the accused on 17.11.2002, is not disclosed by him. In the aforesaid circumstances, the reason stated by PW5 cannot be taken as a cogent one to justify his act. Therefore, the delay remained unexplained and undoubtedly, it has a serious impact upon the case of the prosecution to vitiate it. It is true that a reason is forthcoming in the matter from PW5, but he is not expected to state so, since he is duty bound to forward the properties to the Court without unnecessary delay. 14. The next argument advanced is pertaining to the discrepancies in the version of the witnesses examined by the prosecution. According to the counsel for the respondent, material discrepancies loom large in the oral evidence tendered by the witnesses of the prosecution and the same have the tendency to defeat the prosecution case especially when PW2, the only independent witness examined by the prosecution turned hostile by denying to have witnessed the seizure of the contraband. PW1, PW3 and PW5 are the official witnesses, the versions of whom have been relied on by the prosecution to establish its case. This court could not notice material discrepancies in the versions of those witnesses. Therefore, there is absolutely nothing wrong for the court below to rely on their versions. The argument of the learned counsel in that count will not sustain and is discarded. 15. The authority of PW5, to conduct the search and seizure under the Act is also questioned by the learned counsel for the defence. Admittedly, the search and the seizure were conducted by the Assistant Sub Inspector of Marayoor Police Station. The argument of the learned counsel in that count will not sustain and is discarded. 15. The authority of PW5, to conduct the search and seizure under the Act is also questioned by the learned counsel for the defence. Admittedly, the search and the seizure were conducted by the Assistant Sub Inspector of Marayoor Police Station. Section 3(2) of the Abkari Act defines the term 'Abkari Officer'; in the manner hereinbelow mentioned: “3. Interpretation.- xx xx xx (2) Abkari Officer:- “Abkari Officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Section 4 or 5.” 16. It is provided in sub-section (d) of Section 4 of the Act that, the Government may, by notification in the Gazette-, may appoint officers to perform the acts and duties mentioned in Sections 40 to 53 inclusive of this Act. Therefore, it is for the Government by notification in the Official Gazette to appoint officers to exercise powers as Abkari Officers under the Act. In exercise of the power conferred by the provisions as aforesaid, the Government issued a Notification as S.R.O. No.321/96. As per the said notification, 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 are appointed as Abkari Officers under their respective jurisdiction for the purposes of Sections 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 Officers in the sections aforesaid. The aforesaid notification has come into effect on 29.03.1996. 17. Section 31 for easy reference is extracted hereunder;- “31. The aforesaid notification has come into effect on 29.03.1996. 17. Section 31 for easy reference is extracted hereunder;- “31. Power to certain Abkari and Police Officers to search houses, etc., without warrant.- Whenever the Commissioner of Excise or any Abkari Officer not below such rank as may be specified by the Government in this behalf or any Police Officer not below the rank of Sub Inspector or 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.” The aforesaid provision confers power to certain Abkari and Police Officers to search houses etc., without warrant. The officers empowered under Section 31 are the Commissioner of Excise or any Abkari Officer not below such rank as may be specified by the Government in this behalf or any police officer not below the rank of Sub Inspector or a Police Station Officer. 18. In the case on hand, it was PW5, the Assistant Sub Inspector of Police, Marayoor Police Station who had conducted the search, seizure, sampling, registration of crime and investigation. The role of PW4, the Sub Inspector of Police of Marayoor Police Station was that of verification of the records of investigation conducted by PW5 and laying of final report against the accused. It is true that the search was conducted in an enclosed premise and therefore, PW5, being the Police Station Officer in the absence of PW4, the Station House Officer at the Station at the relevant time, was a competent officer under Section 31 of the Act to conduct search, seizure of contraband and arrest of the accused, when convinced that an offence has been committed by the accused under the Act and the contraband with reference to which the offence was committed was liable for confiscation under the Act. But, PW5 is not empowered under Section 31 of the Act to conduct investigation in the case on hand, which as per SRO NO.321/96 referred supra was conferred strictly on 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. In the case on hand, investigation was to be pursued with by PW4, being an officer empowered as an Abkari Officer as per Notification referred supra. PW4 did not conduct investigation in the case on hand, but only verified records of investigation and laid the final report before the court. Undoubtedly, PW5 has conducted investigation without being empowered by the Act and therefore, acted without authority. The investigation conducted by PW5 can only be considered as illegal and the prosecution case is vitiated for the reason. Despite the factum that the versions of the official witnesses of the prosecution corroborate on material particulars of the case, in view of the legal flaws as enumerated hereinabove, the trial is vitiated. For the reason, the judgment under challenge will not sustain and is liable to be set aside. In the result, this appeal stands allowed and the judgment under challenge is reversed. The Bail Bond is cancelled and accused is set at liberty forthwith.