Babuji v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 25TH DAY OF FEBRUARY 2016/6TH PHALGUNA, 1937 CRL.A.No. 1255 of 2006 (F) ------------------------------AGAINST THE JUDGMENT IN SC 1032/2001 of ADDL.S.C.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA DATED 26-06-2006 C.P.253/2000 OF JFCM-II, NEYYATTINKARA -------- APPELLANT/ACCUSED:: -------------------------- BABUJI, S/O. CHELLAN PANICKER, KUZHINJAVILA, PLAMOOTTUKADA, ERICHALLOR DESOM, KARODE, NEYYATTINKARA. BY ADVS. SRI.T.A.UNNIKRISHNAN SMT.RESHMI POULOSE RESPONDENT/COMPLAINANT:: ---------------------------------- THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR MS.LILLY LASLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.1255 of 2006 -----------------------------------------------Dated this the 25[th] day of February, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court for the trial of Abkari Act Cases, Neyyattinkara, for the offence under Section 58 of the Abkari Act. He was sentenced to undergo rigorous imprisonment for five years and to pay a fine of 1 lakh and, in default of₹ payment of fine, to undergo rigorous imprisonment for six months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW4, the Assistant Excise Inspector, Excise Range Office, Thirupuram, and his party were on patrol at Erichalloor in Karodu Village at about 7.00 p.m. on 08-01-1998. While so, Crl. Appeal No.1255 of 2006 -2- the excise party received information from two persons about the probability of keeping arrack in a nearby shed owned and situated in the property of the appellant. Therefore, the excise party went to that shed along with those two persons and conducted a search in that shed. During the search, three 35 litre white jerrycans were found in the south-west corner of that shed. On examining those three jerrycans, full of arrack was found in them. Since keeping of arrack was an offence under the Abkari Act, PW4 seized the entire 105 litres of arrack contained in those three jerrycans under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW4 and his party reached the Excise Range Office, Thirupuram, with the contraband and the records. PW4 registered Crime No.1 of 1998 of that Range Office in respect of the occurrence. Ext.P2 is the Crime and Occurrence Report thus prepared by PW4. PW4 produced the contraband and the records before the Judicial First Class Magistrate's Court-II, Neyyattinkara. Crl. Appeal No.1255 of 2006 -3- Ext.P3 is the List of Property. Ext.P4 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram. Ext.P5 is the Certificate of Ownership of Land issued by the Village Officer, Karodu. Ext.P6 is the extract from the property register showing the entries made in respect of the properties produced before the court. The investigation of the case was conducted by PW5, the Excise Inspector, Excise Range Office, Thirupuram. He has questioned the witnesses and recorded their statements. He has completed the investigation and submitted the Final Report before the court. The appellant surrendered before the committal court on 06-12-2000. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thiruvananthapuram, and, from there, it was made over to the Assistant Sessions Court, Neyyattinkara. Later, the case was made over to the Additional Sessions Court for the trial of Abkari Act Cases, Neyyattinkara. The Crl. Appeal No.1255 of 2006 -4- court below framed a charge against the appellant alleging the offences under Sections 55(a) and 8(1) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 6 and marked Exts.P1 to P6 and M.O.1 series on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The appellant was examined as DW1 and Ext.D1 was marked on the side of the defence. The court below, after considering the matter, found the appellant guilty of the offence under Section 58 of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. This Court need not go into all those contentions for disposing of this appeal. PW4, the Assistant Excise Inspector, Excise Range Office, Thirupuram, has detected the offence Crl. Appeal No.1255 of 2006 -5- and seized the contraband. The appellant was proceeded against based on such detection of offence and seizure of contraband. The learned counsel for the appellant submits that PW4 was an incompetent officer to detect the offence and seize the contraband. He has relied on S.R.O. No.234 of 1967 issued by the Government of Kerala under the Abkari Act empowering various officers to act in accordance with various provisions of the Abkari Act and the rulings of this Court in **Subrahmaniyan v. State of Kerala (2010 (2) KLT 470)** and in **Sasidharan v. State of Kerala (2012 (2) KLT 392)** and contended that as on 08-01-1998 the Assistant Excise Inspector was not a competent officer to detect the offence and to seize the contraband as he was not a notified officer under S.R.O. No.234 of 1967. He further contended that the Assistant Excise Inspector was empowered as an Abkari Officer only as per S.R.O. No.361 of 2009 dated 08-05-2009. On a perusal of S.R.O. No.234 of 1967 and the rulings cited, this Court is satisfied that as on Crl. Appeal No.1255 of 2006 -6- 08-01-1998 the Assistant Excise Inspector, Excise Range Office, Thirupuram, was not a competent officer to detect the offence and effect the seizure of the contraband as contended by the learned counsel for the appellant. Therefore, the court below had no jurisdiction to take cognizance of the offences alleged in the complaint filed based on such detection and seizure. Consequently, the court below could not have framed a charge against the appellant as it was without jurisdiction. The trial which followed after framing the charge must be treated as non est in the eye of law as it was done without jurisdiction. As the trial was conducted in this case without jurisdiction by the court below, it cannot end either in conviction or in acquittal. The accused was entitled to be discharged as provided under Section 227 of Cr.P.C. Therefore, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to be discharged in this case. -7- Crl. Appeal No.1255 of 2006 6. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is discharged and set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE