A.K. Ravindran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 23RD DAY OF MARCH 2016/ 3RD CHAITHRA, 1938** **CRL.A.No. 1821 of 2004 ( )** **--------------------------AGAINST THE JUDGMENT IN SC 406/2002 of ADDITIONAL DISTRICT & SESSIONS JUDGE FAST TRACK COURT (ADHOC-II), KOZHIKODE DATED 11-10-2004** **APPELLANT/ACCUSED:: ----------------------** **A.K.RAVINDRAN, S/O. KELU,** **OTTURMEETHAL HOUSE, VALAYANNUR, MAVOOR AMSOM, KOZHIKODE TALUK.** **BY ADVS.SRI.B.K.GOPALAKRISHNAN SRI.AYPE JOSEPH** **RESPONDENT(S)/COMPLAINANT::** **---------------------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.1821 of 2004 ---------------------------------------------Dated this the 23[rd] day of March, 2016 ## **JUDGMENT** This appeal is preferred by the accused against the conviction and sentence in S.C.No.406/2002 of Additional District & Sessions Judge, Fast Track(Adhoc-II), Kozhikode u/s.55(a)& (g) of the Abkari Act. The charge against the accused is that on 4.9.2000 at about 9 p.m., the Sub Inspector of Police, Mavoor seized 3.750ml illicit arrack and apparatus for manufacturing arrack from the house of the accused. He was arrested and the contraband articles were taken into custody after preparing a mahazar, reaching at the Police Station, registered a crime and after completing investigation, Sub Inspector, Mavoor laid charge before Judicial First Class Magistrate Court, Kunnamangalam, from there the case was Crl.. Appeal No.1821/2004 2 committed to Sessions Court, Kozhikode. Subsequently, it was made over to Additional District and Sessions Court. 2. During trial, prosecution examined PW1 to PW8 and marked Exts.P1 to P12. MO1 to MO6 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He marked Ext.D1 in support of his defence. The learned Additional Sessions Judge convicted the accused u/s.55(a) & (g) of the Abkari Act and sentenced thereunder. Being aggrieved by that, he preferred this appeal. 3. The learned counsel for the appellant contended that there is no independent evidence to prove the search and seizure. In case of any search two independent respectable persons are to be called from the same locality as witnesses. As per Ext.P5, one police officer was included as search witness, which is in violation of the Code of Criminal Procedure and the Abkari Act. The investigation in this case was 3 Crl.. Appeal No.1821/2004 conducted by PW8, who is a non-empowered officer. 4. At the very out set, I have considered the competency of the empowered officer who conducted search and seizure and investigation. According to Section 4(d) of the Abkari Act, the Government may, by notification in the Gazette, appoint officers to perform the acts and duties mentioned in Section 40 to 53 of this Act. According to Section 4(e), the Government may appoint subordinate officers of such classes and with such designations, powers and duties under this Act as the Government may think fit. According to Section 5, the Government may from time to time make rules prescribing the powers and duties under the Act to be exercised and performed by Abkari Officers of the several classes. According to Section 3(2) of the Abkari Act, an “Abkari Officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Section 4 or 5. Therefore, notification by a Government conferring the power Crl.. Appeal No.1821/2004 4 to exercise duties mentioned in Sections 40 to 53 is necessary in an Abkari offence. 5. As per SRO 321/96 dated 23.9.1996, the Government have appointed all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department within their respective jurisdiction as Abkari Officers vested with power u/s.40 to 53 of the Abkari Act. The notification SRO No.321/1996 reads as follows: “SRO No.321/96.- In exercise of the powers conferred by Section 4 of the Abkari Act, 1 of 1077 the Government of Kerala hereby appoint all Police Officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective jurisdiction for the purposes of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 2, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the Sections aforesaid. This notification shall come into force with immediate effect. (GO(P) No.69/96/TD dt. 29/03/1996).” Crl.. Appeal No.1821/2004 5 6. In this context, I have examined the probability of the seizure, evidence and the cumulative effect of such seizure. The seizure was made by PW1, the Sub Inspector of Police, Mavoor. His evidence shows that on 4.9.2000 at 20.15 hours, when he reached at Cheruppa, he got information that the appellant was manufacturing arrack in his house. Immediately, he recorded the ground of his belief and sent it to the Court thereafter reached at the place of occurrence, where he found the appellant manufacturing arrack. He arrested the accused and seized the contraband articles, after preparing a mahazar. He also took sample from the contraband articles, sealed the sample and affixed label on it at the place of occurrence. The independent witnesses present there attested the search list, reaching at the Police Station , he registered a crime. Ext.P1 is the FIR. Ext.P2 is the search memorandum. Ext.P3 is the inspection memo. Ext.P4 is the arrest memo. Ext.P5 is the search list. The accused was produced before Court with Crl.. Appeal No.1821/2004 6 Ext.P6 remand application. The seized articles were produced before Court as per Ext.P7 property list. PW1 also identifed MO1 to MO6. But in the cross examination, he admitted that one of the independent witnesses preset there left the place and did not co-operate, therefore, he obtained the signature of a Police officer in Ext.P5 search list. PW2 supported the evidence of PW1. He also identified MO1. He admitted that the seized articles were seized at the place of occurrence itself. Analysing the aforesaid evidence, it is found that the articles were seized by PW1 after preparing a search memorandum and one independent witness alone attested that search list. 7. According to Section 50 of the Abkari Act, the report of the Abkari Officer gives jurisdiction to competent magistrate to take cognizance of the offence. Every investigation into the offence under this Act shall be completed without necessary delay. As soon as investigation into the Crl.. Appeal No.1821/2004 7 offence 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 (hereinafter referred to as the 'Code'). Before introducing this Section, filing of reports by Excise Inspector is treated as complaints and the Court is competent to take cognizance of the same by virtue of the provisions contained in the Code. On a perusal of Sections 4, 5 and 50, it is clear that a Magistrate can take cognizance of the offence on the report of the Abkari Officers within their jurisdiction alone. Here, the offence was detected by Mavoor Police and final report was filed by S.I. of Police, Medical College Police Station. But the Sub Inspector of Police, Medical College Police Station conducted investigation on 5.9.2000 as per the direction of C.I. of Police, Mavoor. He questioned the witness. He arrived at the place of occurrence and prepared Ext.P10 mahazar. The sample taken from the Crl.. Appeal No.1821/2004 8 contraband articles was produced before Court for sending it to the chemical examination lab. He prepared Ext.P11 forwarding note. The sample was examined in the chemical examiner's lab and obtained Ext.P12 report. In Ext.P12 , it is stated that the sample contains 28.11% by volume of ethyl alcohol. After completing investigation, S.I. of Police, Mavoor Police Station laid charge before Judicial First Class Magistrate Court, Kunnamangalam. Therefore, the report filed by the Sub Inspector medical College Police Station is an illegal report, as he lacks jurisdiction to conduct investigation outside his territorial jurisdiction without a Government notification. Therefore, the final report laid down by the Medical College Police Station is illegal. 8. The impact of investigation by Sub Inspector out side the territorial jurisdiction has been discussed by this Court in **Saji @ Kochumon** v. **State of Kerala** [2010 (3) KLT 471] and held as follows: Crl.. Appeal No.1821/2004 9 “6. The final report was submitted before the court by PW7, in his capacity as Sub Inspector, Veeyapuram. The report does not disclose on what power or authority he submitted the final report when he is not the Abkari Officer competent to exercise the power under S.50 of the Abkari Act within the territorial jurisdiction of Edathwa police station. The final report does not disclose that he was authorised by the Government to exercise the power under S.50 of the Abkari Act in respect of jurisdiction of Edathwa police station. Though from the witness box PW7 claimed that he was authorised by the Circle Inspector of police as per order in 83/1998 to file the report, no such order was produced either along with the final report or even at the time of evidence. In spite of the fact that PW7 was cross examined with regard to the non production of the order as the final report does not disclose that he has been authorised by the Circle Inspector of Police much less by the order in 83/1998 to either verify or investigate or submit a report, it was not produced. If that be the case, it can only be found that PW7 who laid charge is not the competent Abkari Officer authorised to file a final report as provided under S.50 of Abkari Act in the case. Question is what is the consequence of the cognizance taken on that final report submitted by an officer who is not the Abkari Officer authorised to file final report and the subsequent trial. The Sub Inspector of Police authorised to act as Abkari Officer can exercise his jurisdiction within the territorial limits of his police station. From the final report, it is clear that PW8 is S.I. of Police, Medical College Police Station, Kozhikode. He Crl.. Appeal No.1821/2004 10 has no territorial jurisdiction to enter within the jurisdiction of Mavoor Police Station in conducting investigation in this case. The investigation conducted by Medical College Police Station, Kozhikode is illegal and without jurisdiction. For concluding the possession and ownership of the house a careful appraisement and analysis of evidence is absolutely essential in this case. The evidence of PW3, Secretary of Mavoor Grama Panchayat, shows that she issued Ext.P8 ownership certificate. As per Ext.P8, one Kelu is the owner of the property. PW4, the Village Assistant prepared Ext.P9 site plan as requested by the S.I. Of Police, Mavoor. PW5 did not support the prosecution case. But, he admitted signature in Ext.P4 and Ext.P5. PW6 and PW7 are declared hostile. PW7 stated that he never signed in the mahazar. In the result, the conviction and sentence passed by Crl.. Appeal No.1821/2004 11 the trial Court u/s.55(a) & (g) of the Abkari Act are set aside. The accused is acquitted and set at liberty. Crl.Appeal is allowed. **P.D. RAJAN, JUDGE.** acd Crl.. Appeal No.1821/2004 12