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Judgment
The appellant herein challenges the conviction and sentence against her under Section 55 (g) of the Kerala Abkari Act (for short "the Act") in S.C 623/2008 of the Court of Session, Kozhikode.
The prosecution case is that, at about 12.30 p.m on 22.2.2002, at Vattomparambath within the limits of the Chelannur Excise Range, the appellant was found possessing 8 litres of wash meant for distillation of arrack, contained in a plastic bucket of 10 litres capacity. The offence was detected by a Preventive Officer of the Chelannur Excise Range. The quantity of wash was seized as per mahazar by the Preventive Officer at the spot of detection, and he produced the properties before the Excise Range Office without any delay. The accused was not arrested on the spot because there was no woman officer in the excise party led by the detecting officer. On the basis of the seizure reported, another Preventive officer of the Range registered crime and occurrence report and an
Excise Inspector conducted investigation. After investigation, he submitted final report in court. After complying with the procedure prescribed under the law, the learned Magistrate committed the case to the Court of Session from where it was made over to the learned Additional Sessions Judge (Adhoc-I), Kozhikode for trial and disposal.
The accused appeared before the trial court and pleaded not guilty to the charge framed against her under Section 55 (g) of the Act. The prosecution examined six witnesses and proved Exts.P1 to P6 documents. The MO1 plastic bucket was also identified during trial. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C. She did not adduce any evidence in defence.
On an appreciation of the evidence, the trial court found the accused guilty. On conviction, she was sentenced to undergo rigorous imprisonment for one year and to pay a fine of 1 lakh by judgment dated 19.2.2009. Aggrieved by the judgment of conviction, the accused has come up in
appeal.
When this appeal came up for hearing, the learned counsel submitted that the factual aspects need not be gone into because the accused is entitled for acquittal on the legal aspect that the crime and the occurrence report in this case was registered by an incompetent officer. If it is really a crime registered by an incompetent officer, the prosecution built on such crime must collapse.
Of the six witnesses examined by the prosecution, PW3 is the preventive officer who detected the offence, and PW6 is the Excise Inspector who investigated the case and submitted final report. PW1 is only the Village Officer who prepared the scene plan and PW5 is the Preventive Officer who registered the crime and occurrence report. PW2 examined as an independent witness turned hostile. PW4 is the Excise Guard, who assisted the Preventive Officer in the process of detection.
Ext.P2 crime and occurrence report was registered by a Preventive Officer of the Excise Range. Of course, Preventive Officers are authorised to detect
offences, but they are not authorised to register crimes or to investigate crimes or to submit final report. Only detection powers are given to such category of officers by the Government Order issued in 1967 as S.R.O 234/1967 and also the Government Order of 2009 issued as SRO 361/2009 in suppression of the earlier order. In no circumstance, can a preventive officer register crimes under the Act. This Court has consistently held in so many decisions that only the Excise Officials specifically authorised by the Government under Section 4 of the Kerala Abkari Act can discharge the various functions under the Act. In this case, the detection was made by a competent officer, and investigation was also made by another competent officer.
He submitted final report also in court. Those things will not justify or rectify the illegality otherwise committed in the registration of crime. The crime in this case was registered by an incompetent officer. On this ground itself, the accused is entitled for acquittal. In the above circumstances, the factual aspects need not be probed into.
In the result, this appeal is allowed. The appellant is found not guilty of the offence under Section 55 (g) of the Act, and she is acquitted of the said offence in appeal under Section 386 (b) (i) Cr.P.C . Accordingly, the conviction and sentence against her in SC 623 of 2008 of the court below is
aside. The appellant will stand released from prosecution and the bail bond, if any, executed by her will stand discharged.