1. The revision petitioner herein challenges the conviction and sentence against him under Section 55(g) of the Kerala Abkari Act (for short, ''the
Act'') in C.C.No.872/1997 of the Judicial First Class Magistrate Court, Parappanangadi. He faced prosecution on the allegation that at about 6
p.m. on 26.2.1997, at Edayatparamba within the limits of the Parappanangadi Excise Range, he was found carrying 5 litres of wash in a plastic
can. The offence was detected by a Preventive Officer of the Tirurangadi Excise Circle. He arrested the accused on the spot, and seized the plastic
can and a bottle, as per a mahazar. The Preventive Officer produced the accused and the properties at the Parappanangadi Range Office, where a
Preventive Officer registered the crime and occurrence report. After investigation, the Excise Inspector submitted final report in court. The accused
appeared before the learned Magistrate, and pleaded not guilty to the charge framed against him.
2. The prosecution examined four witnesses, and proved Exts.P1 to P3 documents. The MO1 and MO2 properties were also identified during
trial. The accused denied the incriminating circumstances, when examined under Section 313 Cr.P.C., and projected a defence that this is a false
case foisted against him. He did not adduce any evidence in defence.
3. On an appreciation of the evidence, the learned Magistrate found the accused guilty. On conviction, he was sentenced to undergo rigorous
imprisonment for three months, and to pay a fine of `5,000/- under Section 55(g) of the Act. Aggrieved by the judgment of conviction dated
28.5.2001, the accused approached the Court of Session, Manjeri with Crl.A.No.135/2001. In appeal, the learned Sessions Judge confirmed the
conviction and sentence, and accordingly, dismissed the appeal. Now the accused is before this Court in revision challenging the legality and
propriety of the conviction and sentence, on the ground that there are two very important legal infirmities in this case.
4. On hearing both sides, and on a perusal of the materials, I find that the prosecution is vitiated by two important legal infirmities, the benefit of
which must go to the accused. This Court has consistently held in so many decisions that the various functions under the Act can be discharged
only by the persons, or officials specifically authorised by the Government under Section 4 of the Act. In terms of Section 4, the Government of
Kerala issued a notification as SRO 234/1967, by which, different powers were conferred on different categories of excise officials. Preventive
Officers were given powers to detect offences as per the notification, but they were not given powers to register crimes, or investigate crimes
under the Act.
5. The detection in this case was made by a Preventive Officer of the Excise Circle. After detection, he produced the accused and the properties
at the Excise Range Office. This is what he has to do under the law. Once the accused and the properties are produced at the Range Office, the
Excise Inspector in charge of the Range will have to register crime and occurrence report. But here, the crime and occurrence report was
registered by a Preventive Officer of the Range. This is the evidence given by PW4, the Excise Inspector, who submitted final report in court. His
own evidence is that the crime was registered by the Preventive Officer Govindan. There is no explanation how a preventive officer happened to
register the crime, or why the Excise Inspector did not register the crime. The case built on a crime registered by an incompetent officer will have
to collapse.
6. PW4 does not say in evidence, who investigated the case, and the prosecution has no explanation why the Investigating Officer was not
examined as a witness. The evidence of PW4 will not show, who did the investigation. He has no case that it was done by him. The detection was
made at about 6 p.m. on 26.7.1997, but the crime and occurrence report was registered on the next day. Any way, non-examination of the
Officer, who investigated the case will cause serious prejudice to the accused, and it must be considered as an infirmity. Yet another aspect is that
the forwarding note is not seen proved in this case. The copy produced in court does not contain the specimen of the seal affixed on the sample
bottle. Nobody has given evidence regarding the actual seal affixed on the sample bottle or the plastic can. The mahazar also does not contain the
specimen of the seal. This is also an infirmity in the prosecution case. Thus, as discussed above, I find that there are some infirmities vitiating the
prosecution case.
In the result, this revision petition is allowed. The revision petitioner is found not guilty of the offence under Section 55(g) of the Act, and he is
acquitted of the said offence in revision. Accordingly, the conviction and sentence against the revision petitioner in C.C.No.872/1997 of the trial
court, confirmed in Crl.A.No.135/2001 by the Court of Session will stand set aside, and the revision petitioner will stand released from
prosecution.
