JOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellants are accused 1 and 2 in S.C.No.123/2005 on the file of the Additional Sessions Court (Adhoc)-I, Pathanamthitta, who were found guilty of having committed the offence punishable under Section 8(2) of the Abkari Act, convicted thereunder and sentenced to undergo rigorous imprisonment for one year each and to pay a fine of Rs.1,00,000/- each, with the default sentence of one year rigorous imprisonment each.

(2.) The prosecution case in brief is thus: On 21.02.2002, the Excise Inspectors, PW1 and PW2, attached to Pathanamthitta Range under direction of the Assistant Excise Commissioner, Pathanamthitta went on petrol duty near the Kottali Toddy Shop in the Thiruvalla Excise Range and found the accused in front of the Toddy Shop carrying 4 1/2 litres of arrack in three bottles. They were intercepted and arrested as per Exts.P2 and P3 arrest memos. Ext.P1 seizure mahazar was prepared by PW2 in the presence of independent witnesses, one of whom is PW3. The sample was drawn from the contraband found in possession of the accused, sealed and labelled. They were brought to the Excise Office and crime and occurrence report, Ext.P4, was registered against them. The contraband was produced before the jurisdictional Magistrate on 21.02.2002. But because of the ongoing strike of the Court employees, the property was entrusted back to the Excise Officials and it was produced again only on 16.03.2002. Ext.P6 requisition was also submitted along with Ext.P5 property list and the sample was sent for analysis by the Chemical Examiner, who submitted Ext.P7 reporting confirming the the sample contained ethyl alcohol. PW4 is the Excise Inspector, who investigated the case and PW5 is the Excise Inspector, who submitted the final report. On the basis of the above evidence, the learned Sessions Judge found the accused guilty and convicted as stated above. Aggrieved by the impugned judgment, this appeal.

(3.) The learned Counsel appearing for the accused assails the impugned judgment on various grounds. First, it is stated that PW1 and PW2 were not authorised as Abkari Officers competent to detect or investigate an abkari offence within the jurisdiction of Thiruvalla Range. It is come out in evidence that both these officers were from the Pathanamthitta Excise Range and not from Thiruvalla Range. They were authorised by the Assistant Commissioner of Excise, Pathanamthitta Range to do petrol duty within the Thiruvalla Range. This Court has in Mahesh M.K. v. State, 2017 (1) KHC 120 held that an authorised Abkari Officer means an officer performing his duty within his jurisdiction and not out of his jurisdiction. An Assistant Excise Commissioner cannot authorise an Abkari Officer to detect an offence outside his jurisdiction. The authorisation is by a Government notification and as per the notification concerning PW1 and PW2, they are authorised to detect offence only within the Pathanamthitta Range and not within the Excise Range, Thiruvalla. Under the circumstances, the detection itself is flaw and the benefit should go to the accused.