YASODHA vs STATE OF KERALA

The appellant herein challenges the conviction and sentence against her under Section 8(2) of the Kerala Abkari Act ("the Act" for short) in 452/2009 of the Court of Session, Kollam.

The prosecution case is that, at about 11.45 a.m on 16.2.2007, at Muzhangodi Muri in Thodiyoor village within the limits of the Karunagappally Excise Range, the appellant was found possessing 10 litres of arrack in a plastic can. The offence was detected by a Preventive Officer of the Excise Range. The accused was not arrested on the spot by the Detecting Officer, but the quantity of arrack was seized as per a mahazar. On the basis of the seizure, the Preventive Officer himself registered the crime and occurrence report. Investigation was taken over by the Excise Inspector, and after investigation, he submitted final report in court. On committal, the case came up before the learned Additional Sessions Judge (Adhoc) I, Kollam for trial and disposal.

The accused appeared before the trial court and pleaded not guilty to the charge framed against her under Section 8 (2) of the Act. The prosecution examined three witnesses and proved Exts.P1 to P6 documents. The plastic can allegedly containing arrack had been by the time produced before the Deputy Commissioner of Excise. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances. She did not adduce any evidence in defence.

On an appreciation of the evidence adduced by the prosecution, the trial court found the accused guilty under Section (2) of the Act. On conviction, she was sentenced to undergo simple imprisonment for three months year, and to pay a fine of 1,00,000/- by judgment dated

03.12.2010. Aggrieved by the said judgment of conviction, the accused has come up in appeal.

When this appeal came up for hearing, the learned counsel for the appellant submitted that the appellant is entitled for the benefit of the serious legal infirmities in this case, and so the the factual aspects need

not be probed into. One point raised by defence is that, the crime and occurrence report was registered by an incompetent officer and the other ground is that the property was produced by the Excise Official before an incompetent officer.

PW1 is the Preventive Officer, who detected the offence and also registered the Ext.P2 crime and occurrence report. PW3 is the Excise Inspector, who investigated the case and submitted final report in court. This Court has held in so many decisions that the various functions under the Kerala Abkari Act can discharge only by the officers specifically authorised 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 conferring various powers under the Act on different officers, and in 2009 the Government issued another notification in suppression to the earlier one. In none of these documents, Preventive Officers of the Excise Department are given powers to register crimes. They can detect the offences, but once detected, the Preventive Officer will have to report the fact

of seizure at the Range Office where a competent officer will have to register crime. No officer below the rank of Excise Inspectors are authorised under the Government Notification to register crimes under the Act. Here, the crime was registered by a Preventive Officer who was not competent for such a function at that time. A prosecution built on such crime will have to collapse.

In terms of Section 67B of the Act, the Government of Kerala has appointed Assistant Excise Commissioners as authorised officers to discharge the functions and such category of officer will have to discharge the functions under Section 53A of the Act. But in this case, instead of producing the property before the Assistant Excise Commissioner, the Excise official produced the plastic can containing arrack before the Deputy Commissioner of Excise. Ext.P5 is the inventory prepared by the Deputy Commissioner of Excise on 14.9.2010. The detection in this case was made on 16.2.2007. There is absolutely no explanation for the delay of 2= years in producing the property before the Deputy Commissioner of Excise. There  is no explanation why the Deputy Commissioner received it and passed orders when he is not authorised under the law to discharge the functions under Section 57A of the Act. This is also a very serious infirmity, the benefit of which must go to the accused. Thus I find that on two very important legal grounds, the appellant is entitled for acquittal. In such a situation, the factual aspects need not be probed into.

In the result, this appeal is allowed. Accordingly, the appellant is found not guilty of the offence under Section 8

(2) of the Act, and she is acquitted of the said offence in appeal, under Section 386 (b) (i) of Cr.P.C . The conviction and sentence against her in S.C 452/2009 of the court below is set aside. The appellant will stand released from prosecution and the bail bond, if any, executed by her will stand discharged.