UMESH Vs. STATE OF KERALA

JUDGEMENT

(1.) The aforecaptioned appeal is filed by the sole accused in the Sessions Case, SC No.691/2012, on the file of the Third Additional Sessions Judge, Kasaragod, whereby the appellant/accused has been convicted for the offence under Sec.55(a) of the Kerala Abkari Act and he has been sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.1,00,000.00 (Rupees One lakh only) and in default thereof to undergo rigorous imprisonment for a further period of 6 months. The appeal has come up before us, on an order of reference rendered on 15/7/2022, by the learned Single Judge, whereby the correctness of the dictum laid down by a learned Single Judge of this Court, in the case in para No.6 of the decision in Easwaran v. State of Kerala [2022 (3) KHC 44], in para No.6 thereof, has been doubted and has, thus, been referred to this Division Bench for an authoritative pronouncement.

(2.) One of the main contentions raised by the appellant herein is that, in view of the dictum laid down by the learned Single Judge, in para No.6 of the decision in Easwaran's case supra [2022 (3) KHC 44], an officer of the rank of preventive officer of the Excise department is not empowered to act as Abkari Inspector and, therefore, the conviction rendered in this case is liable to be set aside, as it was found that PW1 therein (preventive officer) lacked authority to conduct search, seizure and sealing of the contraband and for registration of the crime, etc. Whereas, in the present case, the learned Single Judge has doubted the correctness of the said dictum laid down in para No.6 of Easwaran's case supra [2022 (3) KHC 44], by referring to the contents of the statutory notification as per SRO No.361/2009, published in the Kerala Gazette dtd. 8/5/2009, issued as per GO(P) No.420/2009/TD dtd. 8/5/2009, as Clause 14 of the said SRO dtd. 8/5/2009, explicitly authorises preventive officers of the Excise Department on duty within the Kerala State to be Abkari Officers, in relation to the functions assigned to them, by virtue of their respective post, or designation, for the purposes of Secs. 31, 32, 34, 35, 38, 39 & 53 of the Abkari Act and to exercise all the powers conferred and to perform all duties assigned on Abkari Officers under the aforesaid Sec. . Further, proviso to the said SRO dtd. 8/5/2009 also stipulates that, with reference to Secs.31 & 34 of the Kearla Abkari Act, there shall be no limit of jurisdiction within the State of Kerala for the Abkari and other Department officers, named therein, but all persons arrested and all seizures made thereunder shall, without delay, be made over to the Excise Officers possessing local jurisdiction, etc. Hence, the learned Single Judge, as per the above reference order, has held that the view taken by the learned Single Judge in Easwaran's case supra [2022 (3) KHC 44], needs reconsideration by a Division Bench. In view of the abovesaid reference, we now have to answer not only the issue referred to us but also dispose of the main matter in the criminal appeal.

(3.) The appellant has been implicated as the sole accused in Crime No.14/11 of Hosdurg Excise Range Office, registered on 25/2/2011, as per Ext.P5 crime and occurrence report, for the offences punishable under Secs. 8(1) & 8(2) of the Kerala Abkari Act. The Prosecution case is to the effect that, while PW1 Preventive Officer, Hosdurg Excise Range, and his party was on patrol duty and, on reaching the place called Kottakkunnu in Pallikkara village, on 25/2/2011 at about 2 p.m., the accused was found carrying five litres of arrack in a plastic can and on seeing the Excise party, the accused got perplexed and due to suspicion, he was restrained and the 'cannas/can' was inspected and it was found that he was carrying five litres of country made arrack in that plastic can. As mentioned above, the Sessions court, as per the impugned judgment, rendered on 23/12/2013, has convicted the accused, for the offence punishable as per Sec.55(a) of the Kerala Abkari Act and sentenced him as aforesaid.