1. The appellant herein is the 1st accused in S.C No.543/2009 of the Court of Session, Kozhikode. He and two others faced prosecution before the court below, on the allegation that the accused Nos.1 and 2 transported a quantity of 1400 litres of spirit in the Tempo Traveller No.KL-9/B-9914 belonging to the 3rd accused, on 17.6.2006. The offence was detected at the Azhiyur Check Post on the Kainatty Vatakara public road at about 6.45 p.m on 17.6.2006 by a Preventive Officer, who was on special duty, at the check post. He arrested the 1st accused on the spot and seized the contraband articles along with the vehicle, as per a mahazar.
2. Without any delay, he produced the accused and the properties at the Excise Range Office, Vatakara, where an Excise Inspector registered the crime and occurrence report. The Excise Inspector produced the accused in court on the same day, and produced the properties on 19.6.2006. Investigation was taken over by the Assistant Excise Commissioner, Kozhikode and he also submitted final report in court. On committal, the case came up before the Court of Session from where it was made over to the learned Additional Sessions Judge (Adhoc) I, Kozhikode for trial and disposal. The 2nd accused is said to be the person, who ran off and escaped from the spot of detection on seeing the Excise party.3. The three accused appeared before the trial court and pleaded not guilty to the charge frame against them under Section 55 (a) of the Kerala Abkari Act (for short'' the Act). The prosecution examined seven witnesses in the trial court and proved Exts.P1 to P14 documents. All the accused denied the incriminating circumstances when examined under Section 313 Cr.P.C. They did not adduce any oral evidence in defence, but Exts.D1 to D4 were marked.
4. On an appreciation of the evidence, the trial court found the accused Nos.2 and 3 not guilty, and accordingly they were acquitted. However, the 1st accused was found guilty under under Section 55 (a) of the Act. On conviction, he was sentenced to undergo rigorous imprisonment for two years, and to pay a fine of 1,00,000/- by judgment dated 19.2.2011. Aggrieved by the said judgment of conviction, the 1st accused has come up in appeal.
5. On hearing both sides and on a perusal of the materials, I find that there are serious infirmities in this case. PW1 is the Preventive Officer who detected the offence and PW4 is the Excise Inspector who registered the crime and occurrence report. This Court has consistently held in so many decisions that the various functions under the Act can be discharged only by the officers specifically appointed and 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 as SR.O 234/1967 by which different powers were conferred on different categories of Excise Officials, function-wise and territory-wise. Every category was given power for exercise of functions within a particular territory or area. However,there is a proviso to the notification that the limit of territory will not apply to the discharge of functions under Sections 31 and 34 of the Act. Here, PW1, a Preventive Officer of another Range detected the offence, but he reported the fact of detection promptly at the Excise Range Office, Vatakara. The accused and the properties were also produced by him at the Excise Range Office. The crime and occurrence report in this case was registered by PW4, the Excise Inspector. There also, there is nothing wrong. PW5 is the Assistant Commissioner of Excise, who first investigated the case and PW6 is the Assistant Commissioner of Excise, who succeeded PW5 and closed the investigation. The final report was also submitted by him. Assistant Commissioners of Excise are not authorised to investigate cases or to submit final report under Section 50 of the Act. There is a general clause in the 1967 Notification, that the various functions under the Act can be discharged only by the officers not below the rank of Excise Inspectors. But this general authorisation is always subject to the specific authorisation under the other clauses. There is a specific clause authorising Assistant Commissioner of Excise to discharge various functions. Those functions do not include investigation or submitting final report. In short, an Assistant Commissioner of Excise is not competent under the law to investigate cases under the Act, or to submit final report under Section 50 of the Act. A prosecution brought on such a final report submitted by an incompetent person is nonest in the eye of law. This is the position settled by this Court in so many decisions. PW1 and his subordinate officer have given evidence proving the seizure of some plastic cans containing spirit from the hands of the accused. This evidence is of no use when there are serious infirmities affecting the whole prosecution case. Thus, I find that the accused is entitled for the benefit of the serious illegalities discussed above.
In the result, this appeal is allowed. The conviction and sentence against the appellant in S.C No.543/2009 of the court below will stand set aside on the finding that the appellant is not guilty of the offence under Section 55(a) of the Kerala Abkari Act, and accordingly he is acquitted of the said offence in appeal under Section 386(b)(i) of the Cr.P.C. The appellant is released from prosecution, and the bail bond, if any, executed by him will stand discharged.
