UNNI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE revision is filed against the concurrent verdict of guilty rendered against the accused for the offence punishable under Section 55(a) of the Kerala Abkari Act, hereinafter referred to as the 'Act'. Negativing his plea of not guilty, the learned Assistant Sessions Judge, after trial, convicted him of the offence and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1 lakh with default term of simple imprisonment for three months. In appeal, the learned Sessions Judge upheld the conviction and confirmed the sentence without any modification. Aggrieved by the conviction and sentence, questioning its legality, propriety and correctness, the accused has preferred this revision.

(2.) THE gist of the prosecution case is that, on the evening of 31/10/1998, while conducting patrol duty, PW 1, Assistant Sub Inspector of police, Harippad Police station, got reliable information that the accused was engaged in the sale of illicit arrack in his house, situate in Ward No. VII in Karuvatta Village. PW 1, with a police party rushed to the spot, and reaching that place, found the accused carrying a jerry can close to the southern courtyard of his house. Seeing the police party, the accused got perplexed and attempted to make himself scarce. He was intercepted and the jerry can found in his possession was examined, which contained five litres of illicit arrack. Sample was collected and sealed at the spot; and the sample and residue were seized preparing Ext. P1 scene mahazar. THE accused arrested was later enlarged on bail. THE investigation of the crime was conducted by PW 4, the Sub Inspector of Police, Harippad Police Station, and, later, PW5, the Sub Inspector of the nearby Police Station, who, then, held charge of Harippad Police Station laid the charge against the accused indicting him of the offence punishable under Section 55(a) of the Act.

(3.) TO prove the guilt of the accused for the possession of the contraband, that is, five litres of arrack in a jerry can, as alleged, the prosecution relied entirely on the evidence of two Police officers connected with the detection and seizure of the contraband, who were examined as PWs 1 and 2. PW 1, Asst. S.I. of Police, who detected the crime and seized the contraband, had no authority to do so, is the attack raised by the learned counsel for the accused, relying on the notification of SRO No. 321/1996 and also the decision rendered by this Court in Sabu v. State of Kerala, 2007 (4) KLT 1691. If it was a case of accidental detection without prior information, then it could be stated that any police officer was expected to prevent the commission of any offence and taking the offender into custody. But this was a case, even according to the prosecution, PW 1, the Asst. S.I. of Police received prior information of sale of illicit arrack in the residential building of the accused. He proceeded to that spot, pursuant to that information indicated that he went there to have a raid of the building, and, search the place. When a raid over the residential building for detection of Abkari offence is involved, necessarily and inevitably the mandate covered by Section 31 of the Act applies with full force. There is nothing in evidence to show that PW 1 complied with the formalities for conducting a search over the residential building of the accused. Immediately on getting information, he rushed to the spot and reaching there, found the accused with a jerry can beside the courtyard of his building, seized the contraband into custody and arrested him, is the prosecution case. As per Section 4 of the Abkari Act, the Government had authorised only certain Officers of the State to detect or investigate the offences contemplated under the Abkari Act. The Asst. S.I of Police, as per the notification issued by the Government, is not authorised nor empowered to detect or investigate the abkari offences. Having regard to the fact that PW 1 went over to the residential building of the accused pursuant to information that sale of illicit arrack was conducted there, prima facie, indicating that he went over to proceed with a search of that building, that too, without complying with the formalities, it follows that whatever acts performed by him pursuant to reaching the spot could not be taken as having been done with the sanction of law. No doubt, illegality or irregularity in a search will not by itself vitiate the evidence collected by the search and there is no bar in relying upon the evidence collected in such search to inculpate the accused. But in the given case, what has come out is that the prosecution at a later stage had developed a case that at the relevant time, PW 1, the Asst. S.I. of police was in charge of the police station, and as such he was competent to detect a crime and seize the contraband. PW 1 has no such case when he was examined before the Court. So much so, the assertion of PW 4 that PW 1 at the relevant time was in charge of the S.I. of police since that officer was on leave cannot be given much value. So, there is much force in the submission of the learned counsel for the accused that PW 1 was not an authorised officer competent to detect and investigate an offence under the Abkari Act, and as such the detection made by him was unauthorised. The accused in the given facts is entitled to the benefit of doubt since PW 1 was not empowered to detect and investigate the crime. So much so, it has to be concluded that the conviction and sentence imposed against the accused are liable to be set aside, and I do so. The accused is found not guilty and acquitted of the offence under Section 55 (a) of the Abkari Act. Fine amount, if any, remitted by the accused shall be refunded to him. Appeal is allowed.