Chelora Veetttil Rajan v. Sub Inspector of Police, Mattannur and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938 CRL.A.No. 2084 of 2006 --------------------------- AGAINST THE JUDGMENT IN SC 185/2005 of ADDL. SESSIONS COURT (ADHOC), THALASSERY DATED 06-10-2006 APPELLANT/ACCUSED:: --------------------- CHELORA VEETTIL RAJAN, S/O.GOVINDAN, AGRICULTURIST, KOODALI, PATTANNOOR AMSOM, THALASSERY TALUK, KANNUR. BY ADV. SRI.CIBI THOMAS RESPONDENTS/COMPLAINANT & STATE:: ----------------------------------- 1. THE SUB INSPECTOR OF POLICE, MATTANNUR. ## 2 . STATE OF KERALA, REPRESNTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-032016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A.No.2084 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 22[nd] day of March, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-I, Thalassery, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo simple imprisonment for one month and to pay a fine of ₹ 1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for 15 days. 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 respondents. 3. The prosecution case is briefly stated as follows: CRA 2084/2006 2 PW1, the Sub Inspector of Police, Mattannur Police Station, and his party were on patrol at about 6 p.m. on 5.4.2001. While so, the appellant was seen alighting from the bus, viz. Sujatha, carrying a white plastic bag. Entertaining a doubt, the police party examined the bag carried by the appellant when it was found that it contained Indian made foreign liquor, viz. 20 bottles of 375 ml. New Master Brandy and 12 bottles of 180 ml. Green Chanal Brandy. These bottles containing Indian made foreign liquor were permitted to be sold only in Pondicherry. Since the appellant had committed an offence, he was arrested then and there by PW1 preparing Ext.P1 Arrest Memo. All the bottles of Indian made foreign liquor found possessed by the appellant were seized by PW1 under Ext.P2 Seizure Mahazar in the presence of witnesses. PW1 had taken one bottle each of New Master Brandy and Green Chanal Brandy as samples and sealed them. Thereafter, PW1 and his party reached Mattannur Police Station with the appellant, contraband CRA 2084/2006 3 including samples and the records. PW1 registered Crime No.113 of 2001 of that Police Station in respect of the occurrence. Ext.P3 is the FIR thus drawn by PW1. He had produced the appellant, properties including samples and the records before the Judicial First Class Magistrate's Court, Mattannur. Ext.P4 is a copy of the Forwarding Note. The investigation of the case was conducted by PW4, the Sub Inspector of Police, Irikkur Police Station. He had gone to the place of occurrence and prepared Ext.P5 Scene Mahazar. Ext.P6 is the Certificate of Chemical Analysis issued from the Regional Chemical Examiner's Laboratory, Kozhikode. PW4 had questioned the witnesses and recorded their statements. The Final Report was filed before the court by PW1. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thalassery, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-I, Thalassery. The CRA 2084/2006 4 court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs. 1 to 4 and marked Exts.P1 to P6 and MOs. I to III on their side. The appellant was examined under Section 313 of Cr.P.C. The defence has not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) 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. The alleged offence was detected by PW1, the Sub Inspector of Police, Mattannur. He was a competent officer for doing the same. The investigation of the case was conducted by PW4, the Sub Inspector of CRA 2084/2006 5 Police, Irikkur Police Station. The occurrence in this case had taken place within the jurisdiction of PW1 and not within the jurisdiction of PW4. Learned counsel for the appellant submits that PW4 was incompetent to conduct the investigation of this case. The investigation of a case of this nature can be conducted by an Abkari Officer notified under Section 4 of the Abkari Act. Such a Notification has been issued by the Government of Kerala which is S.R.O.No.321/96. It reads as follows: “ **S.R.O.No.321/96.** -In exercise of the powers conferred by section 4 of the Abkari Act, I 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 CRA 2084/2006 6 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 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. _(G.O.(P) No.69/ 96 /TD dt.29-3-1996).”_ As per this Notification, the Government of Kerala 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 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, 52, 53 and 59 of the Abkari Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers in CRA 2084/2006 7 the Sections aforesaid. Therefore, a police officer of and above the rank of Sub Inspector of Police appointed as an Abkari Officer can exercise jurisdiction as Abkari Officer only under his respective jurisdiction. Here, the investigation was conducted by PW4. He was entitled to exercise jurisdiction only within the territorial limits of Irikkur Police Station. The Sub Inspector of Police, Irikkur Police Station, does not have jurisdiction as an Abkari Officer within the territorial limits of Mattannur Police Station as the occurrence in this case had taken place within the limits of Mattannur Police Station. 6. A learned single Judge of this Court in **Saji @ Kochumon v. State of Kerala(2010(3)KLT 471)** considered the scope of appointment of Abkari Officers under S.R.O.No.321 of 1996 and laid down as follows: “Under the S.R.O. Government of Kerala thereby appointed “all police officers on and above the rank of Sub Inspector of Police in charge of law CRA 2084/2006 8 and order and working in the general executive branch of the police department” to be Abkari Officers under the respective jurisdiction for the purpose of Ss.31 to 35, 38 and 40 to 53 and 59 of the Act and to exercise all the powers and discharge of all the duties conferred in Abkari Officer in the sections aforesaid. Therefore, by notification issued by the Government in exercise of the power provided under S.4, a Sub Inspector of Police in charge of law and order and working in the general executive branch of police department is appointed as Abkari Officer, within his respective jurisdiction to exercise the powers provided thereunder. The respective jurisdiction could only be the jurisdiction of that Sub Inspector. It can only be within the territorial limits of his police station. Therefore, Sub Inspector of Police, Edathwa is the Abkari Officer empowered by the CRA 2084/2006 9 Government to exercise the powers under Ss.31 to 35, 38 and 40 to 53 and 59 of Act. Therefore, the officer who is competent to file a final report as provided under S.50 is only the Abkari Officer namely, Sub Inspector of Police, Edathwa or an officer superior to him.” In the light of the provisions of S.R.O.No.321 of 1996 as interpreted by this Court in this Ruling, a Sub Inspector of Police authorised to act as Abkari Officer can exercise his jurisdiction only within the territorial limits of his police station. Therefore, PW4, the Sub Inspector of Police, Irikkur Police Station, has exceeded the limits of his jurisdiction by investigating the case which was within the territorial limits of Mattannur Police Station. 7. Since the investigation was conducted by PW4, an incompetent officer, the court below had no jurisdiction to take cognizance of the offence alleged in the complaint filed based on such investigation. Consequently, the court below CRA 2084/2006 10 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 without jurisdiction by the court below, it cannot end either in conviction or in acquittal. The appellant 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. The appellant is entitled to be discharged in this case. 8. In the result, the conviction and sentence passed by the court below against the appellant are set aside. The appellant is discharged. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. ## **Sd/BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. TO JUDGE CRA 2084/2006 11