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Judgment
The revision petitioner herein is the accused in C.C 462/1996 of the Judicial First Class Magistrate's Court-II, Thiruvananthapuram He faced prosecution in the court below on the allegation that when the Excise team led by the Circle Inspector of the Excise Enforcement and Anti- Narcotic Special Squad, Thiruvananthapuram conducted a search at the railway quarters No.93K in building No.TC XIII/107 at about 2.45 p.m on 17.7.1996, the accused was found possessing huge quantity of Indian made Foreign Liquor and spirit at the said quarters. He was arrested on the spot, and the contraband articles were seized as per a search list and mahazar by the Excise Circle Inspector. He produced the accused and the properties at the Excise Range Office, Thiruvananthapuram where the Excise Inspector registered the crime and occurrence report, and after investigation, the Excise Inspector submitted final report in court.
The accused appeared before the trial court and pleaded not guilty to the charge framed against him under Section 55 (a) of the Kerala Abkari Act (for short ''the Act).
The prosecution examined five witnesses and proved Exts.P1 to P5 documents in the trial court. The MO1 to MO4 properties were also identified during trial. The accused denied the incriminating circumstances when examined under Section 313 Cr.PC, and he projected a defence that he has no connection with the quarters searched by the Excise team, and he has no connection with the contraband articles seized from the said quarters. The accused did not adduce any evidence in defence,.
On an appreciation of the evidence, the learned Magistrate found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of 25,000/- by judgment dated 18.6.1999.
Aggrieved by the judgment of conviction, the accused approached the Court of Session, Thiruvananthapuram with Crl.A No.263/1999. In appeal, the learned Additional Sessions Judge (Adhoc-I), Thiruvananthapuram confirmed the conviction and sentence and accordingly dismissed the appeal by judgment dated 7.6.2006. Now the accused is before this Court in revision under Section 397 Cr.P.C.
On hearing both sides, and on a perusal of the materials in this case, I find that there is a very serious legal infirmity in this case, the benefit of which must go to the accused. This is a case where the detection was made by a Circle Inspector of the Excise Enforcement and Anti-Narcotic Special Squad, Thiruvananthapuram. Of course, the crime and occurrence report was registered by an Excise Inspector of the concerned Range, and investigation was also made by
him. The very same Inspector submitted final report in
court. The crime and occurrence report was registered by a competent officer, investigation was made by a competent officer and final report was also filed by a competent officer.
But the detection was made by an officer who was not competent to detect offences under the Act.
This Court has consistently held in so many decisions that the various functions under the Kerala Abkari Act can be discharged only by the Officers specifically authorised and appointed as Abkari Officers by the Government under Section 4 of the Act. In terms of Section 4 of the Act, the Government of Kerala issued a Notification
in 1967 as SRO 234/1967 by which different powers were conferred on different categories of Excise Officials for the discharge of functions under the Act. Officers of Special Squads like Excise Enforcement and Anti-Narcotic Special Squad or Excise Intelligence Squad were not given powers under the said notification. Such categories of officers were given powers by the Government only in 2009 as per the Notification SRO 361/2009 dated 8.5.2009. Till then, only Excise Officials of the regular Excise Wing had powers under the Kerala Abkari Act. Of course, an officer of the regular Excise Wing attached to some other Excise Range can detect offences, but once detected, he will have to report the detection at the concerned Excise Range where the Excise Inspector of the said Range will register crime and occurrence report and proceed for investigation. That privilege given under the proviso to the Government Notification of 1967 can be applied only in the case of Excise Officials of the regular wing, given powers under the Notification. The categories of officers who are not given powers under the Notification cannot avail the benefit of the proviso to the notification. This aspect has been settled by this Court recently. I find that the detection in this case was made by an incompetent Excise Official. A case built on such detection must collapse. On the ground of this very serious legal infirmity itself, the revision petitioner is entitled for acquittal.
In the result, this petition is allowed. The revision petitioner is found not guilty of the offence under Section 55
(a) of the Kerala Abkari Act and he is acquitted of the said offence in revision. Accordingly, the conviction and sentence against him in CC 462/1996 of the court below and confirmed in appeal will stand set aside and the revision petitioner will stand released from prosecution. The amount, if any deposited by the revision petitioner in the court below as a condition for suspension of sentence will be released to him.