IMPORTANT POINT
The prosecution must prove charges beyond reasonable doubt, and unexplained delays in investigation can be fatal to the case.

ORDER :

(K. V. JAYAKUMAR, J.)

This criminal revision petition is preferred impugning the judgment of the learned Sessions Judge, Kasaragod in Crl.A.No.288/2011.

2. The revision petitioner herein is the sole accused in Crime No.57/2007 of Kasaragod Excise Range registered for offence punishable under Section 55(a)of the Abkari Act.

3. The prosecution case is that, on 04.09.2007 the accused was found carrying 10 litres of arrack at Olayathaduku road in Kudlu village.

4. The trial court convicted and sentenced the accused to undergo simple imprisonment for two years and to pay a fine of Rs.one lakh and in default to undergo simple imprisonment for six months.

5. The appellate court confirmed the conviction and modified the sentence. Impugning the judgment of the learned Sessions Judge, the accused preferred this revision.

6. Before the trial court, PWs.1 to 4 were examined and Exts.P1 to P11 were marked. PW1 is the Excise Inspector who detected the offence. PW2 is the Preventive Officer who accompanied PW1 while detecting the offence. PW3 is the independent witness. PW4 Assistant Excise Inspector conducted the investigation and filed final report before the learned Magistrate.

7. Thereafter, the case was committed to Sessions Court, Kasaragod. The learned Sessions Judge made over the case to Assistant Sessions Court, Kasaragod. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure. After full fledged trial, the Assistant Sessions Judge convicted and sentenced the accused as aforementioned.

8. I have heard Adv. Sanal P. Raj, the learned Public Prosecutor and Adv.T.G.Rajendran, learned counsel appearing for the revision petitioner.

9. The learned Public Prosecutor submitted that the impugned order is legally sustainable and no interference, whatsoever, is warranted in this matter. He further submitted that the prosecution has succeeded in alleging and proving the charge against the revision petitioner.

10. Per contra, the learned counsel for the revision petitioner submitted that the impugned order is illegal, irregular and improper. Both the trial court and the appellate court had failed to note the illegalities and improprieties in this case.

11. The learned counsel further submitted that the prosecution has failed to allege and prove the charge against the accused beyond reasonable doubt. He submitted that the penal statutes are to be interpreted strictly within the four corners of the statute. Suspicion, however strong it may be, it would not be a substitute for proof. The impugned judgment is based on surmises and conjectures.

12. I have heard the rival submission of the counsel for the parties and perused the records.

13. The learned counsel for the revision petitioner mainly urged four grounds. The first submission by the learned counsel for revision petitioner/accused is that, the investigation in this case was conducted by Assistant Excise Inspector. The Assistant Excise Inspector is not authorized to conduct investigation in an Abkari offence. The learned Public Prosecutor resisted this argument contending that, as per Government Order - SRO 361/2009 dated 08.05.2009, the Assistant Excise Inspector is authorized to conduct investigation in an abkari offence. In view of that Government order, I do not find any force in the said argument.

14. The second submission by the learned counsel for the revision petitioner/accused is that, in this case investigation was conducted by a subordinate officer. The detection was done by PW1, who is an Excise Inspector, but the investigation was conducted by an officer subordinate to Excise Officer ie., Assistant Excise Officer. The learned counsel has placed reliance on the decision of this Court in Jinto v. State of Kerala [2023 KLT Online 2004], wherein this Court observed that, the investigation should be conducted either by an officer having equal rank or a higher rank. The relevant portion of the judgment is extracted her