The short point falls for decision is whether the Assistant Excise Inspector under the Abkari Act was competent to detect an offence under the Act occurred on 25-04-1997. Prosecution case, in short, is that the revision petitioner was found carrying 2 litres of illicit arrack in a can through a public road. The offence was detected by PW1, who admittedly was the Assistant Excise Inspector. He not only detected the offence, arrested the accused and registered Ext.P2 crime and occurrence report. Further, he investigated the case. All these facts are evident from the impugned judgment of the Judicial First Class Magistrate Court- III, Kozhikode. Aggrieved by the conviction awarded by the learned Magistrate, the revision petitioner approached the Sessions Court with a criminal appeal, which was dismissed. Hence this criminal revision petition.
2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.
3. The only legal issue arising for consideration is about the authority of the Assistant Excise Inspector to detect and investigate an offence under the Abkari Act as on 25-04-1997. In two decisions, this Court consistently held that the arrest, seizure and investigation made by an Assistant Excise Inspector previous to S.R.O No.361/2009 dated 08-05-2009 cannot be sustained. Learned Single Judge of this Court in Subrahmaniyan v. State of Kerala ( 2010(2) K.L.T 470) held as follows :
“In view of Ss.3(2) and 3(6), there must be officers termed as “Abkari Officers” and “Abkari Inspectors” and especially, in view of S.4(d), officers shall be appointed to perform the acts and duties mentioned in Ss.40 to 53 inclusive of the Abkari Act. Going by various provisions of the Act, it can be seen that wide powers are given to “Abkari Officers” and “Abkari Inspectors”. Besides that, S.50 is more particular that, only “report of Abkari Officer” gives jurisdiction to a competent Magistrate and only on such report, the Magistrate can take cognizance. In the present case, PW1 who was working as an Assistant Excise Inspector was not given powers under the above provisions to effect seizure and investigation. He was also not competent due to absence of conferment of powers under S.50, to file “Report” or complaint. In the present case, the above provisions, and other materials referred to above would show that PW1 who was working as “Assistant Excise Inspector” was not a competent and authorised officer as contemplated by the provisions of the Abkari Act, especially, S.4 (d) and S.70 of the Act and therefore, the seizure and arrest made by PW1 was without authorization and jurisdiction.”
4. That was considered and followed by another learned learned Single Judge in Sasidharan v. State of Kerala (2012(2)
K.L.T 392). The point laid down is thus :
“It is argued since as per the notification in S.R.O. No. 234/1967 it was specifically mentioned that the acts and duties mentioned in sections 40 to 53 of the Act are to be performed by the officer not below the rank of Excise Inspector and since PW2 was only an Assistant Excise Inspector, the arrest of the accused, the seizure of the articles and sampling of the articles done by him were without jurisdiction. Since the illegality annexed to the main parts i.e., the arrest, seizure and sampling, that will go to the root of the matter and hence the cognizance taken and the trial conducted based on such a report are vitiated. Though as per S.R.O.No.234/1967, Preventive Officers were invested with the powers to be exercised under Sections 31,32,35,38, 39, 53 and 59, since the preventive officers are officers specifically named as per the aforesaid notification, the arrest of the accused and seizure of the articles and the production of the accused and property before the Magistrate by the Assistant Excise Inspector who's not a named or notified officer, are without jurisdiction as has been held by this Court in Subrahmaniyan v State of Kerala (2010 (2) KLT 470). The learned Public Prosecutor submits that the contention that even thereafter no notification was issued authorising and empowering the Assistant Excise Inspector to perform the duties under the Act cannot be countenanced in view of the subsequent notification- S.R.O.No.361/2009 dated 8.5.2009 as per which the Assistant Excise Inspector of the Range were empowered to exercise all the powers and to perform all the duties of the Excise Inspectors subject to the control of the Excise Inspector. It was further made clear that all officers of the Excise Department not below the rank of Assistant Excise Inspector were empowered to perform the acts and duties mentioned in Sections 40 to 53 (both inclusive) of the Act. They were also empowered to exercise the duties under Sections 31,32,34, 35, 38, 39 and 53 of the Act and to exercise all the powers conferred and to perform all the duties assigned on Abkari Officers under the sections aforesaid. But that notification cannot come to the rescue of the prosecution in this case since this notification S.R.O. No.361/2009 came into force only with effect from 8.5.2009 whereas the offence in this case was detected on 19.6.2001. The incident in the case on hand took place long prior to the aforesaid notification. Hence, following the decision in Subrahmaniyan's case, it has to be held that PW2, the Assistant Excise Inspector was not empowered under the Act as it stood then, to perform the duties under the aforestated provisions. Therefore, only on this ground, this criminal appeal is allowed. But it is made clear that on and after 8.5.2009, the arrest of the accused, seizure of contraband, sampling, sealing and production of the accused and properties before Court, done by the Assistant Excise Inspector, would be well within his powers.”
5. Therefore, I am of the view that the conviction of the revision petitioner for the alleged offence is legally unsustainable.
In the result, the revision petition is allowed. Conviction of the appellant in C.C No.50/1998 on the file of the Judicial First Class Magistrate Court-III, Kozhikode is hereby set aside. He shall be set free forthwith, if not wanted in any other case. His bail bond shall stand cancelled. If any amount has been deposited by him as a condition for securing bail, it shall be returned to him.
All pending interlocutory applications will stand dismissed.
Sd/- A.HARIPRASAD, JUDGE.
amk //True copy// P.A to Judge