Unauthorized investigation in a criminal case nullifies the proceedings, protecting the rights of the accused under the relevant statutory framework.

JUDGMENT

Dated this the 30th day of September, 2020 The appellant is the accused in S.C. No.308/2003 on the file of the Additional Sessions Judge, (Adhoc)-I Kalpetta. The above case was chargesheeted by the Excise Inspector, Sulthan Bathery against the accused alleging offence punishable under Sections 55 (a) of the Kerala Abkari Act .

2. The prosecution case is that on 6.7.2001 at 3 p.m., the accused was found in possession of 3 litres of illicit arrack by the Excise Inspector and party who were on patrol duty. The offence was detected by PW1 who is the Excise Inspector of Sulthan Bathery.

3. To substantiate the case, the prosecution examined PW1 to PW5. Exts.P1 to P7 are the exhibits marked on the side of prosecution. M.O.1 is the material object marked by the prosecution. After going through the evidence and documents in this case, the trial court found that the accused committed the offence under Section 55 (a) of the Kerala Abkari Act .

Accordingly, the accused is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1 lakh under Section 55 (a) of the Abkari Act. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for six months. Aggrieved by the conviction and sentence, this Crl.Appeal is filed.

4. Heard the counsel for the appellant and the learned Public Prosecutor.

5. The counsel for the appellant submitted that the investigation in this case is conducted by PW5, the Excise Inspector, Kalpetta. The detection was within the jurisdiction of Excise Inspector Sulthan Bathery. The counsel submitted that PW5 has no jurisdiction to investigate the case. According to the counsel, he is not authorised as per the provisions of the Abkari Act. The counsel submitted that in the light of the judgment in Balachandran v. State of Kerala ( 2020 (3) KHC 697) the entire trial in this case is vitiated because an unauthorised officer investigated the case.

6. The Public Prosecutor submitted that there is oral and documentary evidence to prove the case. The Prosecutor submitted that this Court may not interfere with the well considered judgment of the trial court based on technical ground.

7. The point for consideration in this appeal is whether the accused committed the offence under Section 55 (a) of the Abkari Act.

8. The admitted case is that the arrest and seizure of the contraband article was within the jurisdiction of Excise Inspector, Sulthan Bathery. The detection was also done by the Excise Inspector, Sulthan Bathery who was examined as PW1. But the investigation was conducted by PW5, the Excise Inspector, Kalpetta. The question is whether PW5 is authorised to conduct investigation based on an authorisation from Assistant Excise Commissioner within the area of the Excise Range, Sulthan Bathery. This point is considered by this Court in detail in Balachandran's case(supra). The relevant paragraphs of the judgment is extracted hereunder.

“12. A reading of the proviso to the above notification, it is clear that, concerning Sections 31 and 34 of the Act, there is no limit of jurisdiction within the Kerala State 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 Officer possessing local jurisdiction.

Section 31 of the Abkari Act deals with Abkari and Police officers' power to search houses, etc. without a warrant. Section 34 of the Act deals with the power to arrest without warrant in any public place, thoroughfare or open space other than a dwelling house. Actually, Ext.P8 is issued only in accordance with the above proviso to the notification. In Ext.P8, the power is given to Aluva Circle, Aluva Range, and Angamaly Range of the Excise Department for conducting a special check at Moothakunnam toll for curbing effectively Indian made foreign liquor seconds and other illicit articles. Accordingly, PW1 conducted the detection and arrest of the accused in this cas