Redeployment To Special Squad Doesn't Take Away Abkari Officer's Authority But He Must Act Within Bounds Of Duties Assigned To Squad: Kerala HC

Justice Sophy Thomas however added that upon redeployment, the officer is expected to act within the bounds defined for the squad.

The Special Squad in this case was constituted to prevent and detect offences under the Abkari Act and the NDPS Act which were rampantly affecting the younger generations in the society.

The Court stated, “When an Abkari Officer already notified under Section 4 of the Abkari Act as per SRO 234/67 is redeployed to a Special Squad, he need not be again notified as an Abkari Officer to perform the duties and functions as a member of the Special Squad, because by such redeployment, he will not lose his authority as an Abkari Officer. But when he is redeployed to the Special Squad, he has to act within the parameters of the duties and functions, assigned to the Squad, and he cannot cross the borders.

As we have seen, the Squad can function within the territorial limits of their divisions under the direct control of the Assistant Excise Commissioner of the Division concerned. They can do patrolling, they can prevent and they can detect offences. But, they cannot investigate the crime, for which they have to hand over the same to the concerned Range Office, to take follow up action.”

The revision petitioner was 2^nd accused and his wife was arrayed as 1^st accused in an offence registered under Section 8 Abkari Act for storage of illicit arrack at their house. The arrack was found during a search conducted by the Circle Inspector of Excise of the Excise Enforcement & Anti Narcotic Special Squad.

The Assistant Sessions Court convicted both the petitioner and his wife and an appeal was preferred. On appeal, the Additional Sessions Court upheld the conviction against the petitioner and acquitted his wife for failing to prove the case beyond a reasonable doubt. Aggrieved by the dismissal of his appeal, the petitioner has preferred the revision petition.

The petitioner challenged the power of the Circle Inspector of Excise of the Excise Enforcement & Anti Narcotic Special Squad to conduct search and seizure. Relying upon Sujith v. State of Kerala (2016), it was argued that only officers authorized under Section 4 of the Abkari Act can conduct the investigation.

The Court noted that the State Government can appoint Abkari Officers from different Departments by issuing notification under Section 4 of the Abkari Act to conduct investigations under the Act. It found that “All officers of the Excise Department not below the rank of Excise Inspectors - to perform the acts and duties mentioned in sections 40 to 53 inclusive of the Act.”

In this case, the Court stated that the offence was detected, and the arrack was seized by the Excise Circle Inspector, Excise Enforcement and Anti Narcotic Special Squad. Further, the Court noted that the Excise Circle Inspector carried only the search and seizure and the investigation was not conducted by him. It also found that the Excise Circle Inspector would be construed as an Abkari Officer as he was from the Excise Department and not below the rank of Excise Inspector.

Relying upon the notification, the Court held that the Special Squads were constituted across different districts and were placed under the direct control of the Assistant Excise Commissioner. Elaborating on the power of the Special Squads, the Court stated thus:

“The duty of the Special Squad is to prevent and detect offences under the Abkari Act and the Narcotics Drugs and Psychotropic Substances Act, and they shall do patrolling and checking, for prevention and detection of offences under the Abkari Act and other Acts, on the direction of the Assistant Excise Commissioner of the division concerned, or of any superior authority. They shall enquire into petitions entrusted to them, by the Assistant Excise Commissioner or any superior authority.”

Additionally, the Court stated that the Special Squad detecting the offence under the Abkari Act has no power to carry out the investigation and shall hand over the investigation to the concerned Range Officer. It held thus: 

“ When the officials redeployed to the Squad are already competent to function as Abkari Officers, there is no need for any further notification, notifying them again as Abkari Officers to function as members of the Squad. Otherwise, the offences detected by the Special Squad, have to be thrown to the trash, defeating the very purpose of formation of such Squads, to prevent such offences.”

In the facts of the case, the Court held that the arrack was detected and seized by an Excise Inspector who was an Abkari Officer, though he was redeployed to the Special Squad. It noted that the Excise Inspector would not lose his authority to conduct search and seizure in cases under the Abkari Act and NDPS Act once he was redeployed to the Special Squad.

However, the Court held that there was insufficient evidence against the petitioner to convict him. It held that merely because the arrack was found from a building of which he was the owner would not make him liable. It cannot be said that the petitioner was in constructive possession of the arrack only because it was seized from his house. It held that there was no evidence to prove that the arrack was stored in the petitioner's house with his knowledge and consent.

The Court further held that there was a delay of two years in completing the investigation and filing the charge sheet. It held that the delay was not explained and fatal to the prosecution case.

Accordingly, the Court set aside the conviction against the revision petitioner and acquitted him.

Counsel for the petitioner: Advocate Nireesh Mathew

Counsel for the respondent: Public Prosecutor M C Ashi

Citation: 2024 LiveLaw (Ker) 10

Case title: Gangadharan v State of Kerala

Case number: CRL.REV.PET NO.73 OF 2014

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