JUDGMENT

1. This appeal is at the instance of the sole accused in S.C No. 71/2002 of the Court of Addl. District and Sessions Judge (Adhoc 1), Thodupuzha, who challenges his conviction and sentence under Section 55(a) of the Abkari Act (for short, ‘the Act’ only) The proseqution case is that on 14.6.99 at 3 P.M the accused was found in possession of 3 litres of arrack in a plastic can at Vattappara junction at a place called Pothamedu. On the basis of the said allegation, crime No. 8/99 of Devikukulam Excise Range was registered. After investigation, a final report was filed in the Court of Judicial First Class Magistrate, Devikulam, whereupon C.P No. 3/2001 was initiated and by order dated 6.10.2001, the learned Magistrate committed the case to the Sessions Court, Thodupuzha where the case was instituted as S.C No. 71/2002, which was made over to the court of Assistant Sessions Judge, but subsequently, it was transferred by the Sessions Court to the trial court for disposal. During the course of trial, PWs 1 to 3 were examined on the side of the prosecution and Exts. P1 to P5 were marked as documentary evidence. M.O-1 material object was also identified and marked. The defence's stand was total denial. No evidence was adduced from the side of the defence. Finally, on the basis of the evidence and materials on record, the trial court found that the accused is guilty of the offence under Section 55(a) of the Act and accordingly he is sentenced to undergo rigorous imprisonment for a period - of three months and to pay a fine of Rs. 1,00,000/- (one lakh) with a default sentence of simple imprisonment for three months. It is the above judgment and order of conviction and sentence challenged in this appeal.

2. I have heard Sri Padayattee Yeldo, the learned counsel appearing for the appellant and also the learned Public Prosecutor.

3. The learned counsel vehemently argued that the judgment of the trial court is absolutely illegal, improper and irregular and liable to be set aside. Though several factual grounds are taken in the memorandum of appeal, during the submissions the learned counsel confined his main argument to the competency and jurisdiction of PW 1 to effect the seizure and arrest of the appellant/accused. In support of the above argument, the counsel invited my attention to Section 70 of the Act and submitted that no notification has been issued by the Department or the Government conferring the requisite power on the Assistant Excise Inspectors.

4. The point raised by the counsel assumes prime importance and as the same is capable to shake the very basis of the prosecution case, I am of the opinion that the said point can be considered as the first issue in this matter.

5. The learned counsel for the appellant emphatically submitted that PW 1, being the Assistant Excise Inspector, has no powers under Sections 40 to 53 of the Act by virtue of Section 4(d) of the above Act. It is also his contention that there is no notification or Government Order, conferring such powers on Assistant Excise Inspector.

6. On the other hand, learned Public Prosecutor submitted that the Government has issued notification conferring powers upon the excise officials including the Assistant Excise Inspectors. The learned Public Prosecutor submitted that when SRO Nos. 233/67 and 234/67 were issued, vide G.O.M.S No. 356/67.Rev., dated 10th August 1967, the post of Assistant Excise Inspector was not created in the Excise Department and, therefore, in the said notifications, the powers and duties of Assistant Excise Inspector were not mentioned. It is the further submission that the post of Assistant Excise Inspector was created with effect from 10.10.1985, and the powers and duties of Assistant Excise Inspectors were fixed and assigned only with effect from 12.10.88 vide G.O(MS) 142/88 dated 12.10.88 The learned Public Prosecutor took me through the said Government Order and he made available to me a copy of the same for perusal. It is the further contention of the learned Public Prosecutor that the post of “Assistant Excise Inspector” will come in between the posts of “Excise Inspector” and “Preventive Officer” and therefore, by virtue of their tanking itself, and especially, in the light of the notification SRO 234/67, they are also authorised to discharge the functions and duties that assigned to Excise Inspectors, Preventive Officers and also to the Excise Guard. Hence, according to the learned Public Prosecutor, the seizure and arrest effected by PW 1, the “Assistant Excise Inspector”, is in accordance with the powers conferred upon him and therefore, there is no illegality or lack of jurisdiction.

7. In the light of the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor, the question to be considered is whether the Assistant Excise Inspector is an authorized officer as envisaged by Section 4(d) and Section 70 of the Abkari Act. In order to consider the above question, the facts and circumstances involved in this case, acquire relevance, which I shall state briefly. As stated earlier, the allegation is that the appellant/accused was found in possession of three litres of arrack at about 3 PM on 14.6.99 when PW 1 and party were on patrol duty, especially, when the jeep in which they were travelling reached at Vattappara junction, they saw the accused coming from the opposite direction holding one plastic and, on suspicion, the accused was intercepted and PW 1, the Assistant Excise Inspector, inspected the can and found that the can contains three litres of liquor which, on smelling and tasting, identified as arrack. Thus, the accused was arrested and Ext. P1 mahazar was prepared and M.O-1 can which contained the arrack and the contraband article were seized. Thereafter PW 1 and party returned to the excise office and registered Ext. P2 crime report. Accordingly, accused as well as the contraband article were produced before the Judicial First Class Magistrate, Devikulam. The property was produced as per Ext. P3 property list. Ext. P4 was also filed before the court with a request to forward the sample for chemical analysis. Ext. PS is the chemical analysis report, thus obtained. PWs 2 and 3 are the independent witnesses examined to prove the seizure and arrest, but they turned hostile. The only evidence available is that of the deposition of PW 1 and the documents such as Exts. P1 to P5. When PW 1 was examined, he had deposed before the court during the chief examination itself that on 14.6.99 he was in the Devikulam Excise Range office working as “Assistant Excise Inspector”. He had also deposed in terms of the prosecution case and through him Ext. P1 seizure mahazar was marked. Besides that, Ext. P2 crime report, Ext. P3 property list, Ext. P4 forwarding note and Ext. PS Chemical Analysis report were also got marked through him. MO 1 was also identified and marked through PW 1. During cross examination, he had stated that no superior officer was with him and he was in charge of the range. Absolutely, there is no evidence as to who conducted the investigation and who prepared final report/complaint and filed it in the court on conclusion of the investigation.

8. Sections 3(2) and 3(6) of the Act define the “Abkari Officer” and “Abkari Inspector” respectively. According to Section 3(2), “Abkari Officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5. “Abkari Inspector” means an officer appointed under section 4 clause (d). Section 4(d) says that the Government may, by notification in the Gazette, may appoint officers, to perform the acts and duties mentioned in Sections 40 to 53 inclusive of this Act. Section 70 of the Act specifically deals with conferring of powers and making of appointments, which reads as follows:

“70. The conferring of powers and making of appointments All notification and orders conferring powers, imposing duties and making appointments under this Act may respectively refer to the persons concerned specially by name or in virtue of their office or to classes of officials generally by their official titles, and all courts shall take judicial notice thereof'

9. In this juncture, it is apposite to consider Section 50 which says that report of Abkari Officer gives jurisdiction to a competent Magistrate. Sub-section 2 of Section 50 says:

“(2). As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-section (2) of section 173 of Code of Criminal Procedure, 1973 (Central Act 2 Of 1974”.

(emphasissupplied)

10. From Section 50, it is crystal clear that the court can take cognizance only upon the report field by an “Abkari Officer” on completion of the investigation as per the provisions of the Act. In the present case, absolutely, there is no evidence as to who conducted the investigation and who filed the final report as contemplated under section 50 of the Act.

11. According to PW 1, at the time of the detection of the offence, he was working as “Assistant Excise Inspector” in the Devikulam Excise Range Office. Though in paragraph 5 of the impugned judgment, it is stated that PW 1 was the Excise Range Inspector, Devikulam, but in the appendix to the same judgment, showing the witness schedule, PW 1 is shown as one Mr. M.K Janardhanan and in the bracket it is shown as (AEI). So there is no scope for any dispute that the officer, who detected the crime and seized contraband article and arrested the accused, was PW 1 who was working as “Assistant Excise Inspector” of the Devikulam range at the relevant time. Item No. 8 of the notification, Le.S.R 0 234/67 is relevant, which reads as follows:

“In exercise of the powers conferred by Section 4 of the Abkari Act, 1 of 1077 and of all other powers hereunto enabling and in supersession of the previous notifications on the subject, the Government of Kerala hereby appoint the officers mentioned in column (1) of the Schedule to exercise the powers and perform the duties specified in that column with jurisdiction over the areas specified against each in column (2) of the said schedule, namely:—

Schedule Officers and their powers and duties Local jurisdiction (1) (2)XX XX XX XX XX XXXX XX XX8. All officers of the Excise Department not below the rank of Excise Inspectors - to perform the acts and duties mentionedin sections 40 to 53 inclusive of the Act. (emphasis supplied)Within the areas for which they are appointed”

12. Further details in the notification show as to which of the category of the officers of the department will come under the definition of “Abkari Officers”. It is also relevant to note that in the said notification, officers appointed as “Excise Inspectors”. “Circle Inspectors”. “Preventive Officers”, and Excise Guards” were given specific powers and authorities. The “Assistant Excise Inspectors” were not given such powers. Public Prosecutor submitted that at the time of issuing SRO 234/67, there was no post of “Assistant Excise Inspector” and that is why that category of officers is not mentioned in the said SRO and it is further submitted by the learned Public Prosecutor that subsequently, the post of “Assistant Excise Inspectors” was created during the year 1985 and with effect from 12.10.1988, the “Assistant Excise Inspectors” were also authorised to perform the duties of Excise Inspectors. In support of the above submission, the learned Public Prosecutor, after making available to me a copy of G.O (MS) 142/88, Taxes Department dated 12.10.88, submitted that the duties and responsibilities of the “Assistant Excise Inspectors” in the Excise range is the “same” as those of the “Excise Inspectors”. It is also the submission of the Public Prosecutor that by virtue of the rank of “Assistant Excise Inspectors” above the rank of “Preventive Officers”, it is only proper and reasonable to conclude that the “Assistant Excise Inspectors” have also powers as that are enjoyed or conferred upon the “Preventive officers”.

13. I am enable to accept the above contention. In view of Sections 3(2) and 3(6), there must be officers termed as “Abkari Officers” and “Abkari Inspectors” and especially, in view of Section 4(d), officers shall be appointed to perform the acts and duties mentioned in sections 40 to 53 inclusive of the Abkari Act. Section 70 specifically says that “all notification and orders conferring powers, imposing duties and making appointments under this Act may respectively refer to the persons concerned specially by name or in virtue of their office or to classes of officials generally by their official titles, and all courts shall take judicial notice thereof', (emphasis supplied). In the present case, no such notifications are produced and the materials which referred to above do not show that the “Assistant Excise Inspectors” are conferred with powers that contemplated under sections 40 to 53.

14. On a reading of Section 50, it is crystal cleat that the court can take cognizance only upon a valid report filed by “competent officer after investigation of the case as provided under Section 50 of the Act’. Section 40 deals with procedure on arrest and seizure. Section 41 deals with disposal of persons arrested. Going by various provisions of the Act, it can be seen that vide powers are given to “Abkari Officers” and “Abkari Inspectors”. Besides that, section 50 is more particular that, only “report of Abkari Officer” gives jurisdiction to a competent Magistrate and only On such report, the Magistrate can take cognizance. In the present case, PW 1 who was working as an Assistant Excise Inspector was not given powers under the above provisions to effect seizure and investigation. He was also not competent due to absence of conferment of powers under section 50, to file “Report” or complaint. A trial conducted based upon a report of an incompetent officer will render as “non est” 7 A Division Bench of this Court in the decision in Varkev v. State of Kerala (1993 (1) KLT 72), held:

“The consequence is that Excise Inspectors who filed the complaints in these cases had no authority to file such a complaint. The result is that the Sessions Court or the Special Court had no jurisdiction to take cognizance of the same. They could not have framed charge against the accused. The charge framed by them was without jurisdiction. The trial which followed the said charge must be treated as non est, because it was done without jurisdiction. If the trial was one held without jurisdiction, it cannot end in either conviction or acquittal. The court below ought to have discharged the accused under S. 227 of the Code of Criminal Procedure”.

15. A Full Bench of this Court, as per its decision in Abdul Rehman v. State of Kerala (1995 (1) KLT 234 (FB), has affirmed the decision of this Court in Varkey's case (1993 (1) KLT 72) (cited supra). In Prabhakaran v. Excise Circle Inspector (1992 (2) KLT 860), it is held:

“Learned Public Prosecutor informed us, after ascertaining the position from the Government that no officer has been authorised by the State Government as per the aforesaid clause (d). If so, the respondent has no authority to file a complaint for the offence under the NDPS Act. The corollary is that the Court of Sessions or Special Court has no jurisdiction to take cognizance of the offence under the NDPS Act on such complaint. The charge framed against the petitioner is hence without jurisdiction.”

16. In the present case, the above provisions, and other materials referred to above would show that PW 1 who was working as “Assistant Excise Inspector” was not a competent and authorised officer as contemplated by the provisions of the Abkari Act, especially, Section 4(d) and Section 70 of the Act and therefore, the seizure and arrest made by PW 1 was without authorization and jurisdiction.

17. It is to be noted that only three witnesses were examined by the prosecution out of which PWs 2 and 3 were independent witnesses and they turned hostile. PW 1 has not stated as to who conducted the investigation and who filed the report. If that be so, in the absence of such details, the committal court has committed a grave mistake in taking cognizance. Since the committal proceedings and taking cognizance itself were without jurisdiction, the trial court ought not have proceeded with such trial, especially, when PW 1 has no power for seizure and arrest as contemplated by the Act. In the light of the above discussion and the materials considered and the provisions referred above, the judgment of the trial court is illegal, improper and irregular. The trial itself rendered as non-est. Consequently, the conviction and sentence imposed against the appellant/accused is liable to be set aside and he is entitled to get discharged from the case registered against him.

18. In the result, this appeal is allowed setting aside the conviction and sentence imposed against the appellant vide judgment dated 16.10.2003 in SC No. 71/02 of the Court of Additional Sessions Judge (Adloc-I), Thodupuzha, and discharging the appellant/accused in the above case. The bail bond, if any, executed by the appellant/accused is cancelled and he is set at liberty. The amount of Rs. 12,500/- deposited by the appellant towards the compliance of the condition imposed by this Court at the time of suspending the sentence is directed to be refunded to the appellant/accused forthwith on his proper request.