JOSEPH v. NONE

Crl. Appeal No. 276 of 2003-:3:-arrack into his tea shop after taking the same from the vicinity ofthe river. When the excise people attempted to arrest his wifeand daughter, the neighbours obstructed. He appeared beforethe excise inspector on the next day. He is innocent in this case.6. Since the case was not a case of no evidence for theprosecution, the court below did not record an order of acquittalunder Section 232 Cr.P.C. The appellant did not adduce anydefence evidence when called upon to enter on his defence.7. The learned Addl. Sessions Judge, after trial, as perjudgment dated 13.01.2003 found the appellant guilty of theoffence punishable under Section 55(a) of the Abkari Act andsentenced him to rigorous imprisonment for one year and to paya fine of Rs.1 lakh and on default to pay the fine, to suffer simpleimprisonment for three months. It is the said judgment which isassailed in this appeal.8. I heard the learned counsel appearing for the appellantas well as the learned Public Prosecutor.9. After a careful reappraisal of the oral and documentaryevidence in the case, I am not satisfied that the prosecution hassucceeded in establishing the guilt of the appellant beyond Crl. Appeal No. 276 of 2003-:4:-reasonable doubt.10. PW1 is the Excise Inspector, Sulthan Bathery ExciseRange who allegedly detected the offence. PW2 was the ExcisePreventive Officer who accompanied PW1. PWs 3 and 4 arethe independent witnesses to Ext.P1 seizure mahazar. Both ofthem turned hostile to the prosecution. PW5 is the attestor toExt.P2 scene mahazar. PW6 was the Excise Inspector whoconducted the investigation by preparing Ext.P2 scene mahazarand questioning the witnesses. PW7 was the Excise Inspectorwho verified the investigation conducted by PW6 and filed thefinal report before the Judicial Magistrate of the First Class-I,(JFCM-I for short), Sulthan Bathery under Section 173 (2)Cr.P.C.11. What is unravelled through the oral and documentaryevidence adduced by the prosecution is the following:-On 22.07.1997, PW1 (Excise Inspector) along with hisexcise party including PW2 (Preventive Officer) was on patrolduty. While so, P.W.1 got a credible secret information to theeffect that the accused namely Perumpadapothiyil Joseph wasclandestinely selling arrack. The excise party led by PW1 Crl. Appeal No. 276 of 2003-:5:-proceeded to the said place at Vandikadavu. When they wentnear the river behind the tea shop run by the appellant's wife,they found the appellant with MO3 black jerry can of 5 litrecapacity in his right hand and coming from the oppositedirection. As soon as the appellant saw the excise party, hemade an attempt to decamp from there. Getting suspicious,P.W.1 and his excise party restrained the appellant. Thecontents of the jerry can was tested by PW1 by tasting andsmelling the same to find that it was illicit arrack. Whenquestioned about the contents of the 5 litre jerry can carried bythe appellant, he admitted that it was illicitly distilled arrack.Then, in the presence of PWs 3 and 4, (the independentwitnesses) PW1 arrested the appellant and took the jerry caninto custody. On further interrogation of the appellant herevealed to P.W.1 that he had filled the jerry can from the bulkquantity of arrack kept inside the nearby bushes. On searchingthe nearby bushes, two black jerry cans (Mos 1 and 2) having acapacity of 35 litres with one jerry can full of the same liquid andanother containing 5 litres of the same liquid were found. Thosetwo jerry cans were also seized. Since the arrack inside all the Crl. Appeal No. 276 of 2003-:6:-jerry cans was of similar nature, 200 ml. by way of sample wasdrawn by PW1 from one of the cans into a bottle having acapacity of 375 ml. The jerry cans and the sample bottles weresealed and seized under Ext.P1 mahazar to which PWs 1 and 2and the independent attestors affixed their signatures. Theappellant as well as the properties and the seizure documentswere then taken to the Sulthan Bathery Excise Range Office fromwhere Ext.P3 crime and occurrence report was prepared and acase was registered as CR 71/97. Ext.P2 is the scene mahazarprepared by PW6 another Excise Inspector who conducted theinvestigation. Ext.P4 is the chemical analysis report whichshows that the sample of liquid forwarded to the ChemicalExaminer contained 36.90 percent by volume of ethyl alcohol. 12. In the first place, the statement in Ext.P1 mahazar andthe testimony of PWs 1 and 2 to the effect that the accusedadmitted that the contents of the 5 litre jerry can held by himwas arrack are not admissible in evidence. The furtherstatement in the said mahazar that the accused told the exciseparty that the said can was filled from the bulk quantity of arrackkept in the nearby bushes, is also not admissible. The reason for Crl. Appeal No. 276 of 2003-:7:-this is that even though PWs 1 and 2 are excise officials, afterthe amendment of Section 50 of the Abkari Act with effect from03.06.1997, excise officers can no more be considered as non-police officers so as to exclude confessions made to them.Amended Sec. 50 of the Abkari Act, reads as follows:-“50. Report of Abkari Officer gives jurisdiction to acompetent Magistrate: (1) Every investigation into theoffence under this Act shall be completed without unnecessarydealy.(2) As soon as investigation into the offences under thisAct is completed, the Abkari Officer shall forward to aMagistrate, empowered to take cognizance of the offence on apolice report, a report in accordance with sub-Section (2) ofSection 173 of the Code of Criminal Procedure, 1973 (CentralAct 2 of 1974).”Until the issuance of G.O.(P) 71/96 dated 29.03.1996 publishedas SRO 321/96 all officers of the State Excise Department notbelow the rank of Excise Inspectors were having the power toperform the duties under Sections 31 to 53 and 59 of the Act.But as per the aforesaid notification, Police Officers of aparticular category and revenue officers of a particular categorywere also authorised to perform most of the aforesaid duties ofExcise Inspectors. The said notification reads as follows:- Crl. Appeal No. 276 of 2003-:8:-“S.R.O. No. 321/96 : - In exercise of the powers conferredby section 4 of the Abkari Act, 1 of 1077 the Government ofKerala hereby appoint all police officers of and above therank of Sub Inspector of Police in charge of Law and Orderand working in the General executive branch of the PoliceDepartment and all Revenue Officers of and above the rankof Deputy Collectors to be Abkari Officers under theirrespective jurisdiction for the purposes of Sections31,32,33,34,35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50,51, 52, 53 and 59 of the Act and to exercise all the powersand to discharge all the duties conferred and imposed onAbkari Officers, in the sections aforesaid.This notification shall come into force with immediate effect”.Since the Abkari Act does not prescribe the procedure forinvestigation into the offences under the said Act, and also sincethe powers and duties of the officers as provided under ChapterVIII of the Act consisting mainly of Sections 30 to 53 – A are notinconsistent with the provisions of the Cr.P.C by virtue ofSection 4(2) of Cr.P.C, all offences under any other law includingthe Abkari Act are to be investigated in accordance with theprovisions contained in the Cr.P.C. Section 4 Cr.P.C. reads asfollows:-“4(1) Trial of offences under the Indian Penal Code andother laws:- (1) All offences under the Indian Penal Code(45 of 1860) shall be investigated, inquired into, tried, andotherwise dealt with according to the provisions hereinaftercontained. Crl. Appeal No. 276 of 2003-:9:-(2) All offences under any other law shall be investigated,inquired into, tried, and otherwise dealt with according to thesame provisions, but subject to any enactment for the timebeing in force regulating the manner or place of investigating,inquiring into, trying or otherwise dealing with suchoffences”. In paragraphs 120 and 121 of Directorate ofEnforcement v. Deepak Mahajan AIR 1994 SC 1775, theApex Court observed as follows:- “120. Lastly, it falls for our consideration whether Section 4(2) of the Code of Criminal Procedure can be availed forinvestigating, inquiring or trying offences under any law otherthan the Indian Penal Code which expression includes FERAand Customs Act etc.121. Section 4 (2) of the Code corresponds to Section 5(2) ofthe old code, Section 26 (b) of the Code corresponds to Section29 of the old Code except for a slight change. Under thepresent Section 26 (b) any offence under any other law shall,when any Court is mentioned in this behalf in such law, betried by such Court and when no Court is mentioned in thisbehalf, may be tried by the High Court or other Court by whichsuch offence is shown in the Fist Schedule to be triable. Thecombined operation of Sections 4 (2) and 26 (b) of the Code isthat the offence complained of should be investigated orinquired into or tried according to the provisions of the Codewhere the enactment which creates the offence, indicates nospecial procedure”.13.Here, the Kerala Abkari Act does not prescribe anyspecial procedure for investigation into the offences under the Crl. Appeal No. 276 of 2003-:10:-said Act. After conclusion of the investigation, the AbkariOfficer is to file a final report in accordance with Section 173 (2)Cr.P.C as enjoined by Section 50(2) of the Abkari Act. Suchreport is to be filed as soon as investigation is completed.Even without any conferment of power, Abkari Officers, thus bynecessary implication become officers in charge of a policestation for the purpose of conducting investigation. [VideDeepak Mahajan's Case (Supra)]. Thus, going by Sub-section 2 of Section 50 of the Abkari Act, every Abkari Officer,after the completion of investigation, is required to file a reportin accordance with sub-Section 2 of Section 173 Cr.P.C. Forreasons to be stated hereinafter every Abkari Officer filing acharge sheet, after the amendment of Section 50 of the AbkariAct with effect from 3-6-1997 will have to be treated as a PoliceOfficer for the purpose of Sec. 25 of the Evidence Act. 12.It is not the garb which an officer wears but it isthe nature of power he weilds that may be determinative of thequestion as to whether such officer is a police officer or not. Ifit were otherwise, then confessions recorded by C.B.I. officerswho have no prescribed uniform will have to be included for Crl. Appeal No. 276 of 2003-:11:-consideration and confessions recorded by Forest Officers likeRange Officers etc. who wear khaki uniform and cap will have tobe eschewed from consideration. But that is not the test to beapplied. One of the main points of distinction judiciallyrecognised to distinguish a police officer from a non-policeofficer is the exclusive authority of the police officer to file afinal report called the “police report” under Section 173(2)Cr.P.C. (Vide Ramesh Chandra v. State of W.B. - AIR 1970S.C. 940 (5 Judges); K.I. Pavunny v. Assistant Collector,C.E.C., Cochin- 1997 (3) SCC 721; Badaku Joti v. State ofMysore – AIR 1966 S.C. 1746 (5 Judges); Raj KumarKarwal v. Union of India – AIR 1991 SC 45; Balkishan v.State of Maharashtra – AIR 1981 SC 379; State of Keralav. Ramadasan – 1988 (1) KLT 270; Ahmmed Koya v. Stateof Kerala – 1990 (2) KLT 405 and Seethamaniyan v. Stateof Kerala – 1996 (1) KLT 313. In State of Punjab v Barkat Ram - AIR 1962 SC 276 thewith a Coram strength of 3 Judges, the majority speakingthrough Ragubar Dayal (J) although held that a customsofficer acting either under the Land Customs Act, 1924 or the Crl. Appeal No. 276 of 2003-:12:-Sea Customs Act, 1878 is not a police officer for the purpose ofSec. 25 of the Evidence Act, however, observed that for anofficer to be understood as a police officer, he need notnecessarily be a member of the police force. Subba Rao, J inhis dissenting view approved a passage from the judgment ofBalakrishna Ayyar, J, in Public Prosecutor v. Paramasivam- AIR 1953 Madras 917 and observed that the said view laysdown with clarity the real test for determining whether aparticular officer is a police officer or not within the meaning ofSec. 25 of the Evidence Act. The said passage by a DivisionBench of the Madras High Court reads as follows:-“There is no exhaustive definition of the expression “PoliceOfficer “ in any of our statutes..........In the absence of a statutory definition, and, apartfrom all authority one would be tempted to say that apolice officer is a person whom any statute or otherprovision of law calls such, or, on whom it confers all orsubstantially all the powers and imposes the duties of apolice officer. If he is expressly called a police officerthere is no difficulty whatsoever. If he is not so calledthen the next step is to ask “what does the law requirehim to do ? What are the duties imposed on him ? andwhat are the powers conferred on him ? If these are Crl. Appeal No. 276 of 2003-:13:-substantially those of a police officer there need be noqualms in regarding him as one. If his powers and dutiesare confined to a particular extent of territory or to aparticular subject-matter he will be a police officer onlyin respect of that territory or that subject-matter. Thematerial thing to consider would be not the name given tohim, nor the colour of the uniform he is required to wear,but his functions, powers and duties. A police, officerdoes not cease to be such merely because he is put into awhite khadder uniform instead of one in khaki drill; amedicine will be just the same whether it is packaged in aglass jar or a plastic container”. Subsequently, in Raja Ram Jaiswal v. State of Bihar – AIR1964 SC 828 a majority of two Judges' with a total Coramstrength of three Judges' observed as follows:“In regard to certain matters, he (Excise Officer) does notpossess powers even analogous to those of a PoliceOfficer. Thus he is not entitled to submit a report to aMagistrate under Sec. 190 of the Code of CriminalProcedure with a view that cognizance of the offence betaken by the Magistrate. Section 187 (A) of the SeaCustoms Act specifically provides that cognizance of anoffence under the Sea Customs Act can be taken onlyupon a complaint in writing made by the customs Officeror other officer of the Customs not below the rank of an Crl. Appeal No. 276 of 2003-:14:-Assistant Collector of Customs authorised in this behalf,by the Chief Customs Officer”.In para 14 of the majority observed as follows:-“ This provision (Section 25 of the Evidence Act) wasthus enacted to eliminate from consideration, confessionsmade to an officer who, by virtue of his position, couldextort by force, torture or inducement a confession. AnExcise Officer acting under Sec. 78 (3) (of the Bihar andOrissa Excise Act, 1915) would be in the same position asan officer in-charge of a police station making aninvestigation under Chapter XIV of the Code of CriminalProcedure. He would likewise have the sameopportunity of extorting a confession from a suspect. Itis, therefore, difficult to draw a rational distinctionbetween a confession recorded by a police officer strictlyso called and one recorded by an Excise Officer who isdeemed to be a Police Officer”.In paragraph 23 of the judgment, the majority concluded asfollows:-“ (23). There is one more reason also why the confession made to an Excise Sub-Inspector must beexcluded, that is, it is a statement made during the courseof investigation to a person who exercises the powers of Crl. Appeal No. 276 of 2003-:15:-an officer in charge of a police station. Such statement isexcluded from evidence by S. 162 of the Code ofCriminal Procedure except for the purpose ofcontradiction. Therefore, both by S. 25 of the EvidenceAct as well as by S. 162, Cr.P.C. the confession of theappellant is inadmissible in evidence. If the confessiongoes, then obviously the conviction of the appellantcannot be sustained. Accordingly, we allow the appealand set aside the conviction and sentences passed on theappellant”.The confession made to an Excise Inspector was thus excludedfrom consideration. The Supreme Court in Deepak Mahajan'sCase (Supra) – AIR 1994 SC 1775 observed in para 115 asfollows:-“It should not be lost sight of the fact that a police officermaking an investigation of an ofence representing theState files a report under Section 173 of the Code andbecomes the complainant whereas the prosecutingagency under the special Acts files a complaint as acomplainant i.e. under Section 61 (ii) in the case ofFERA and under Section 137 of the Customs Act. To saydifferently, the police officer after consummation of theinvestigation files a report under Section 173 of theCode upon which the Magistrate may take cognizance Crl. Appeal No. 276 of 2003-:16:-of any offence disclosed in the report under Section 190(1)(b) of the Code whereas the empowered orauthorised officer of the Special Acts has to file only acomplaint of facts constituting any offence under theprovisions of the Act on the receipt of which theMagistrate may take cognizance of the said offenceunder Section 190 (1) (a) of the Code. A fter takingcognizance of the offence either upon a police report orupon receiving a complaint of facts, the Magistrate hasto proceed with the case as per the procedure prescribedunder the Code or under the special procedure, if any,prescribed under the special Acts. Therefore, the word“investigation” cannot be limited only to policeinvestigation but on the other hand, the said word iswith wider connotation and flexible so as to include theinvestigation carried on by any agency whether he be apolice officer or empowered or authorised officer or aperson not being a police officer under the direction of aMagistrate to make an investigation vested with thepower of investigation”. In the case of a non-police officer, he does not, therefore,have the authority to file a police report under Section 173(2) Cr.P.C. Until the amendment of Section 50 of the AbkariAct, all abkari officers were authorised to file only Crl. Appeal No. 276 of 2003-:17:-complaints and cognizance of the offences under theAbkari Act was being taken on such complaints. But afterthe amendment of Section 50, Abkari Officers can only filea final report in accordance with Section 173(2) Cr.P.Cthereby transforming Abkari Officers also to the status ofpolice officers. With effect from 3-6-1997 in allprosecutions under the Abkari Act, Abkari Officers arefiling police reports (charge sheets) as provided underSection 173 (2) Cr.P.C. Hence any confession made to anabkari officer after 03.06.1997 will be deemed to be aconfession made to a police officer within the meaning ofSection 25 of the Evidence Act and will stand interdictedby the said Section. If so, the confession made by theappellant to P.W.1 Excise Inspector cannot be relied on asan incriminating piece of evidence. 14. What now survives for consideration is as towhether there is any other incriminating evidence againstthe appellant after eschewing the confession made toP.W.1. The prosecution has no case that P.W.1 is an Crl. Appeal No. 276 of 2003-:18:-officer who by virtue of his experience, if any, couldlegitimately be treated as an expert who can conclusivelyopine that a particular liquid is arrack by smell and taste.The very fact that P.W.1 himself drew a sample for thepurpose of confirmation through chemical analysis showsthat even P.W.1 did not trust his own olfactory andgustatory senses. It is unsafe to convict a person basingsolely on the smelling sense or tasting faculty of a person.Proof by a technical person who has considered the matterfrom a scientific point of view is not only desirable but isalso necessary. (See State of A.P. v. Madiga Boogenna– AIR 1967 S.C. 1550 and State of Kerala v.Sreedharan – 1965 KLT 1002). Even according to PWs1 and 2, the only can which the appellant was actuallycarrying was MO3 which is a black jerry can having acapacity of 5 litres. The other two jerry cans (Mos 1 and 2)each of 35 litres capacity were not seized from his custodyor possession. The bushes from which those two cans wereseized has not been proved to be under the ownership of or Crl. Appeal No. 276 of 2003-:19:-within the control of the appellant. The alleged confessionby the appellant to PW1 that MO3 can was filled from thebulk quantity of arrack is Mos 1 and 2 jerry cans kept inthe nearby bushes is also not admissible in evidence.Moreover, there is no evidence to show that it was theappellant who kept Mos 1 and 2 cans in the said bushes orthat the land where the bushes are located belongs to or isin the possession of the appellant. Ext.P1 is the mahazarprepared by PW1 allegedly from the site itself. Exceptstating that the sample of 200 ml. was drawn from one ofthe three cans, the mahazar does not indicate theparticular can from which the sample was drawn. But atthe stage of evidence, PW1 would say that the sample wasdrawn from MO3 can of 5 litre capacity carried by theappellant . This changed version by PW1 cannot beaccepted for a moment and is not discernible from Ext.P1contemporaneous mahazar prepared by him at the place ofdetection.15. Even assuming that the samples were drawn from Crl. Appeal No. 276 of 2003-:20:-MO3 can, there is absolutely no evidence as to when theproperties were produced before the Magistrate. Theproperty list (thondi list) as per which the properties wereallegedly produced before the J.F.C.M. I Sulthan Batherywas neither marked nor produced. Even a perusal of thelower court records shows that there is no such propertylist available in the records. But PW7, the InvestigatingOfficer would say that the property list was produced beforecourt on 18.08.1997 and until then the properties were inthe custody of PW1. PW7 had not dealt with the properties.He had not even seen the properties. PW1 who detectedthe offence has no case that the properties were producedbefore court on 18.08.1997 or that they were in his safecustody until the date of production. Even if there wererecords to show that the properties were produced beforecourt on 18.08.1997, there is absolutely no explanationforthcoming regarding the inordinate delay in producing theproperties before the court. There is no acceptablematerial to show that the properties including the sample Crl. Appeal No. 276 of 2003-:21:-bottle reached the court with their seals in tact.16. Yet another infirmity in the prosecution case isthat there is no request or forwarding note either producedor marked to indicate that a request was made to theMagistrate to send the sample bottle to the chemicalexaminer for analysis. PW6 who conducted theinvestigation, has no case that he had made any suchrequest or had filed any forwarding note. Likewise, PW1also has no case that he had made a request to theMagistrate to send the sample bottle to the chemicalexaminer. Ext.P4 certificate of chemical analysis dated24.11.1997 is relied on by the prosecution to show that thesample bottle was duly despatched to the chemicalexaminer for analysis. In the absence of any forwardingnote or requisition, it is not explained as to how theMagistrate forwarded a sample bottle to the chemicalexaminer as per his covering letter dated 19.08.1997referred to in Ext.P4 certificate. Even the office copy of thecovering letter has not been produced. The thondi section Crl. Appeal No. 276 of 2003-:22:-clerk who was the custodian of the properties before theMagistrate, was not examined to prove matters such as thedate of receipt of the property before the Magistrate, thecondition in which those properties were received in Courtincluding the fact whether a sample bottle was received andif so, whether the seals if any on such bottle were in tact,the date of despatch of the sample to the chemical examinerand the nature of the custody of the sample bottle untilthen. The prosecution can succeed in securing a convictionagainst the appellant only if it is shown that the samplewhich was subjected to chemical analysis as evidenced byExt.P4 certificate was the very same sample which wasdrawn from the bulk quantity allegedly held by the accusedand which after change of hands, eventually reached thehands of the chemical examiner (See State of Rajasthanv. Daulat Ram – AIR 1980 SC 1314, Valsala v. State ofKerala – 1994 (2) KLT 550 (SC) and Sasidharan v. Stateof Kerala – 2007 (1) KLT 720) 17. The conviction entered and the sentence passed Crl. Appeal No. 276 of 2003-:23:-by the court below overlooking the above vital aspects ofthe matter cannot be sustained and are accordinglydislodged. The appellant is acquitted of the offence underSection 55(a) of the Abkari Act and shall be set at liberty.Dated this the 23rd day of October, 2009. V. RAMKUMAR, JUDGE.rv Crl. Appeal No. 276 of 2003-:24:- V. RAMKUMAR, J. ------------------------------------ Crl. Appeal No. 276 of 2003 ---------------------------------------- 23rd day of October, 2009.JUDGMENT Crl. Appeal No. 276 of 2003-:25:-