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2022 DIGILAW 307 (KER)

Easwaran S/o Madaswamy v. State of Kerala

2022-03-31

MARY JOSEPH

body2022
JUDGMENT : MARY JOSEPH, J. 1. Judgment dated 26.07.2013 of Additional Sessions Court-IV (Ad-hoc-II), Thodupuzha (for short ‘court below’) in SC No. 83 of 2013 is assailed in the appeal on hand. The appellant is the sole accused in the case. He was found guilty by the court below for commission of an offence under Section 8(1) punishable under Section 8(2) of the Abkari Act (for short ‘the Act’) and sentenced to undergo rigorous imprisonment for six months and to pay Rs. 1,00,000/- and in default to undergo simple imprisonment for three months. 2. The accused being aggrieved by the above judgment has approached this Court in the appeal on hand. Sri. T.A. Unnikrishnan, the learned counsel for the appellant has contended that the court below went wrong in appreciating the evidence and thus, miscarriage of justice was resulted to the appellant. According to him, the evidence tendered by the prosecution is highly insufficient to establish commission of offence under Section 8(1) of the Act. The sole official witness examined in the case is the preventive officer. As PW-1, his specific case was that an information was received while he was at the police station and then he travelled 45 Kms in a taxi to reach the spot and there, he found the accused engaged in sale of liquor. Version of any other official witness or any independent witness was not available to corroborate the version of PW-1. Apart from that there was delay in sending the contraband for chemical examination. Therefore, it is urged by the learned counsel that had the court below adverted to the drawbacks as above, it ought not to have found the appellant guilty for an offence under Section 8(1) of the Act and convicted and sentenced him to undergo sentence as stated above. According to the learned counsel, there is nothing wrong in relying on the version of the official witnesses if it was untainted with material discrepancies and non-creditworthiness. Oral evidence of yet another official witness must be available for it to see corroboration. According to him, the punishment provided to the appellant being grave, the court below ought to have found that the offence against the appellant stands proved by the corroborative version of official witnesses. 3. Oral evidence of yet another official witness must be available for it to see corroboration. According to him, the punishment provided to the appellant being grave, the court below ought to have found that the offence against the appellant stands proved by the corroborative version of official witnesses. 3. According to the learned counsel, after getting a reliable information, PW-1 proceeded to the spot, in a vehicle which was a taxi taken by him on hire. According to him, PW-1 has no explanation for travelling about 45 Kms to reach the spot in a taxi without being accompanied by any other officials. Had there been any other officials accompanying PW-1, the prosecution ought to have cited and examined him as a witness to establish corroboration. 4. It is noticed that the accused had denied all the incriminating circumstances that have been put to him during examination held under Section 313 (1)(b) Cr.P.C. and maintained the stand of innocence. The accused has also apprised the court of a material circumstance stands in his favour, but has been overlooked by the prosecution. According to him, his mother was a worker in MMI Estate and has been denied payment of wages for the work done by her. Therefore he had questioned the authorities of MMI Estate for non payment of wages to his mother. He has also raised his voice and hands against them to get the wages. According to him, the authorities had maintained a grudge against him for doing so and that impacted the false registration of the crime against him. According to him, only evidence that has come on record from the version tendered by PW-1 was that he had travelled all the way from Peermade to Kottamala, that too, in a vehicle hired by him. He had proceeded to the spot wherein the accused was allegedly selling arrack without being accompanied by any other officials. He had not offered any explanation for not availing the departmental vehicle and for choosing to travel alone. 5. He had proceeded to the spot wherein the accused was allegedly selling arrack without being accompanied by any other officials. He had not offered any explanation for not availing the departmental vehicle and for choosing to travel alone. 5. According to the learned counsel, even if the version of PW-1, that he rushed to the spot in a vehicle hired, based on an information received that the accused is engaged in selling arrack near the Devi Temple at Kottamala, is taken as true, his further version that he had found the accused engaged in sale on reaching the spot even after undertaking a journey of 45 kms, and that too only with 800 ml of arrack and a glass in his possession is difficult to be believed. For covering 45 kms at least 45 minutes would be needed. The quantity found in the possession of the accused was only 800 ml of arrack. As per the prosecution case information was received about sale of arrack by the appellant on the pathway, 50 meters away from Kottamala Devi Temple. Prosecution has no case that the accused was in possession of more than 800 milliliters of arrack at the relevant time. Money recovered from the pocket of the shirt of the accused was only Rs. 60/-. The information received at 11.30 a.m. on 25.04.2010 was that the accused was engaged in the sale of arrack. The version of PW-1 who reached the spot after travelling about 45 kms was that the accused was found on his legs there with 800 ml of arrack in a bottle and an empty glass in his possession. According to him, on getting information of sale by the accused he immediately rushed to the spot in a taxi, hired by him. 6. PW-1 is only a preventive officer who is not an officer empowered to do any of the acts spoken to have done by him. He was only in charge of Excise Inspector, Excise Range Office, Peermade. As per Section 4 of the Act, the Government of Kerala is empowered to issue a notification to appoint officers who are authorised to act as Abkari Inspector. He was only in charge of Excise Inspector, Excise Range Office, Peermade. As per Section 4 of the Act, the Government of Kerala is empowered to issue a notification to appoint officers who are authorised to act as Abkari Inspector. In exercise of the power under Section 4 of the Act S.R.O. No. 321/1996 was issued by the Government which is extracted hereunder: “S.R.O. No. 321/1996 - In exercise of the powers conferred by section 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 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. This notification shall come into force with immediate effect. [G.O. (P) No. 69/96/TD dated 29.3.1996].” Therefore, a preventive officer is not appointed by the Government to act as an Abkari Inspector. Therefore, without any authority that PW-1 proceeded to the spot and conducted the search, seizure and sealing of the contraband. Without any authority that the crime was also registered by him. He was only holding the charge of the Excise Range Officer on the alleged day. Therefore, all the formalities performed by PW-1, following receipt of information suffers for those being performed by an officer, not authorised by the provisions of the Act to do accordingly. Something done without authority can only be taken to have not done. The alleged detection, search, seizure, sampling, sealing, registration of crime and other associated formalities being performed without authority are illegal. 7. On getting reliable information that PW-1 proceeded to the spot. It is for him to make any other officer to accompany him in the vehicle for the purpose of detection of the crime. In the case on hand PW-1 has no case that some other officers had also accompanied him to the spot on the alleged day. 7. On getting reliable information that PW-1 proceeded to the spot. It is for him to make any other officer to accompany him in the vehicle for the purpose of detection of the crime. In the case on hand PW-1 has no case that some other officers had also accompanied him to the spot on the alleged day. None of the officers of the Excise Department were cited as a witness by the prosecution to establish his case. PWs. 2 to 4 are none other than independent witnesses who according to the prosecution are available at the spot at the relevant time of seizure. These witnesses did not tender any version supportive of the prosecution case. According to them, signatures were affixed on the seizure mahazar only from Excise Range Office, Peermade. Therefore, there is absolutely no evidence to corroborate the solitary version of PW-1, which being related to compliance by him of formalities under the Act without authority itself is unreliable. The offence charged in the case is liable to attract severe punishment. When an offence alleged against the accused is serious in nature and liable to attract stringent punishment, on guilt being established, the officers responsible for launching the prosecution must take special care to do things in a reliable manner with utmost transparency. In the case on hand, the preventive officer who was in charge of the Excise Inspector, Peermade proceeded alone to the spot, that too in a private vehicle hired by him for the purpose. He did not cause any one to accompany him to the spot. He has conducted the search, seizure, sealing and also registration of the crime, on his own, as in a one man show. 8. As rightly pointed out by the learned counsel there was delay in forwarding the sample to the court and therefrom to the Chemical Examiner’s Laboratory. Delay occurred was not found explained either by PW-1 or PW-5 with cogent reasons. PW-5 is the investigating officer who is bound to explain the delay in forwarding the samples to the court and thereafter to the Chemical Examiner’s Laboratory. In the absence of any cogent reason stated by them to substantiate the delay, there is every reason for accepting the argument advanced by the accused that tampering of the contraband cannot be ruled out. 9. In the absence of any cogent reason stated by them to substantiate the delay, there is every reason for accepting the argument advanced by the accused that tampering of the contraband cannot be ruled out. 9. The above drawbacks constrain this Court to take a view that the prosecution case is a doubtful one. The stand of the accused in defence was that for questioning the authorities of the Estate for wages having been denied to his mother for the work done by her might have irritated the officials to obtain the service of an official of the Excise to register a false case against the appellant. The appellant has put forth a stand of false implication while denying the incriminating circumstances put to him during his examination under Section 313 (1)(b) Cr.P.C. The case put forth as above appears a probable one in the circumstances discussed as above. 10. Therefore, the finding of the court below that the appellant is guilty for the offence under Section 8(1) punishable under Section 8(2) of the Act, cannot be said to be a justifiable one. The court below ought not to have arrived at a finding of guilt of the accused based on the solitary evidence of PW-1, who is not even an officer empowered under the Abkari Act. The court below ought to have viewed the proceedings of the prosecution case as conducted by an unauthorised officer and therefore, suffers for the illegality involved. In the above circumstances, the judgment under challenge is only to interfered with. 11. In the result, the appeal is allowed and the impugned judgment is set aside. The bail bond stands executed by the accused is set aside and he is set at liberty forthwith.