Gangadharan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 30TH DAY OF SEPTEMBER 2013/8TH ASWINA, 1935** **Crl.Rev.Pet.No. 1900 of 2013 () --------------------------------** **AGAINST THE JUDGMENT IN CRL.A. 144/2013 of ADDL.SESSIONS COURT, FAST TRACK, (ADHOC)-II, KOZHIKODE DATED 31-07-2013** **AGAINST THE JUDGMENT IN ST 41/2009 of J.M.F.C.,KUNNAMANGALAM DATED 27-02-2013** **REVISION PETITIONER(S)/APPELLANT/2ND ACCUSED: ---------------------------------------------** **GANGADHARAN, AGED 61 YEARS, S/O.KORAPPAN, PARAYARUKANDY HOUSE, P.O.PANANGAD BALUSSERY, KOZHIKODE.** **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENT/RESPONDENT/COMPLAINANT(S):** **-------------------------------------** **STATE OF KERALA, REPRRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **R BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No. 1900 of 2013 -----------------------------------------------------Dated this the 30[th] day of September, 2013 ORDER** The Revision Petitioner is the 2[nd] accused in S.T.No.41 of 2009 on the files of the Judicial First Class Magistrate's Court, Kunnamangalam. He was prosecuted, along with two other accused, for the offences punishable under Section 15C read with Sec.63 of the Abkari Act. The prosecution case is that on 02/11/2008 at about 20.15 hours all the accused were found consuming alcohol by standing on the road margin of the Kozhikode - Wynad National Highway 212, near Sindhu Theatre, Kunnamangalam, which is a public place. Thus, according to the prosecution, the accused have committed the offence punishable under Section 15C of the Abakri Act. After trial, the learned Magistrate found the accused guilty of the said offence and Crl.R.P.No.1900 of 2013 **==> picture [7 x 9] intentionally omitted <==** convicted thereunder. They were sentenced to pay a fine of `3,000/- (Rupees Three Thousand only) each and in default, to undergo simple imprisonment for one month each for the said offence. Aggrieved by the conviction and sentence, though the Revision Petitioner had preferred Criminal Appeal No.144 of 2013, after re-appreciating the entire evidence on record, the learned Sessions Judge also confirmed the verdict of guilty, conviction and sentence, as such, without any interference. This Revision Petition is filed challenging the concurrent findings of conviction and sentence. 2. Though this Revision Petition is filed on various grounds challenging the concurrent findings of conviction and sentence, the learned counsel for the Revision Petitioner focussed on the main point that the trial is vitiated by procedural irregularity and illegality in investigation. The learned counsel further submits that in the instant case the crime was investigated by the Assistant Sub Inspector of Police, P.W.6, who is not an abkari officer designated under Crl.R.P.No.1900 of 2013 3 Sec.3(6) of the Abkari Act. The learned counsel further drew my attention to paragraph-10 of the trial court judgment which states that P.W.6 is the Assistant Sub Inspector of Police, Kunnamangalam Police Station, who conducted the investigation and laid charge sheet against the accused. Therefore, an officer incompetent to conduct the investigation has investigated the offence and laid charge sheet. The learned counsel cited the decisions reported in _**Abdul Rehman v. State of Kerala**_ [1995 (1) KLT 234 (FB)] and _**Subash v. State of Kerala**_ (2008 (2) KLT 1047). In short, no conviction can be based on a final report filed by an officer incompetent under law and such an illegal infirmity cannot be cured by Sec.461(a) of the Cr.P.C. and it will come under Sec.461(g) of the Cr.P.C. 3. Per contra, the learned Public Prosecutor submits that, though, the Assistant Sub Inspector of Police is not a designated abkari officer under Sec.3(6) and Sec.31 of the Abkari Act, the investigation conducted by a Station House Crl.R.P.No.1900 of 2013 **==> picture [7 x 9] intentionally omitted <==** Officer below the rank of the Sub Inspector of Police can also be justified in view of Sec.156(2) and Sec.2(o) of the Cr.P.C. In support of the said argument, the learned counsel cited the decision in _**Joy v. State of Kerala**_ (2010 (3) KLT 20). That apart, if the trial is over, even if the charge was laid by the Assistant Sub Inspector of Police, that does not vitiate the trial as it amounts to an irregularity only. In order to substantiate the above contention, the learned Pubic Prosecutor placed reliance on the decision reported in _**Union of India v. Prakash P. Hinduja**_ (AIR 2003 SC 2612). 4. I heard the arguments advanced by the learned counsel for the revision petitioner and the learned Public Prosecutor and bestowed my anxious consideration to the rival submissions. 5. In view of the above rival submissions, the question to be considered is whether the investigation and laying of charge conducted by an investigating officer, not designated Crl.R.P.No.1900 of 2013 **==> picture [7 x 10] intentionally omitted <==** or empowered by the statute vitiate the trial. Going by the decision in _**Joy v. State of Kerala**_ (2010 (3) KLT 20), it could be seen that this Court held that an Assistant Sub Inspector of Police holding the charge of S.H.O. is the competent officer to conduct search and seizure. The above proposition was held on the basis of Sec.156(2) and Sec.2 (o) of the Cr.P.C. Indisputably, the said provision empowers an officer in charge of a Police Station, though he is not a S.H.O., to conduct search and seizure. But, here, the question is a different one. Here the question is, whether an designated officer is competent to conduct investigation and lay charge. Going by the definition of 'Abkari Inspector' under Sec.3(6) of the Abkari Act, an 'Abkari Inspector' means an officer appointed under Sec.4, Clause (d). Under Sec.4(b), the Government may appoint any person other than the Commissioner of Excise to exercise all or any of the powers and to perform all or any of the duties of the Commissioner of Excise, subject to the Crl.R.P.No.1900 of 2013 **==> picture [7 x 10] intentionally omitted <==** control of the Government. Reference can also be made to the Notification SRO No.321 of 1996 which states that in exercise of the power conferred by Sec.4 of the Act the Government appointed all police officers of and above the rank of Sub Inspector in charge of law and order and working in the general executive branch of the police branch to exercise all the powers and to discharge all the duties conferred and imposed on the abkari officers in the sections referred to in the Notification. In other words, the police officer of and above the rank of a Sub Inspector, is invested with the power of Abkari Officer. Indisputably, the alleged detection of the offence in the present case, its investigation and submission of final report are all done by an Assistant Sub Inspector. 6. Then, the question arises for consideration is whether a designated officer can further delegate the power conferred by a Notification. I am of the opinion that a designated power cannot be delegated further and such Crl.R.P.No.1900 of 2013 **==> picture [7 x 10] intentionally omitted <==** officer who has been conferred with the power has no authority to make further delegation to any subordinate officer. Going by _**Union of India v. Prakash P. Hinduja**_ (AIR 2003 SC 2612), it is seen that there, the question was, whether an officer below the rank of the Deputy Superintendent of Police can conduct an investigation which was specifically conferred to the Deputy Superintendent of Police. There, both officers were working in the same department and sources of power is one and the same. The superior officer can entrust the subordinate officer to investigate the case. I am of the opinion that the facts of the said case is entirely different from the instant case. In the instant case, the Sub Inspector of Police gets a power in the light of a notification issued under a different act. Therefore, the person who designated under the notification alone can make investigation and no other subordinate officer can make investigation in exercise of the power conferred to superior officer by the Crl.R.P.No.1900 of 2013 **==> picture [7 x 10] intentionally omitted <==** notification. This question was elaborately considered in the Division Bench of this Court in Subash v. State of Kerala [2008(2) KLT 1047]. There the question was whether final report laid by the Assistant Sub Inspector of Police who is not an Abkari Officer as defined in Abkari Act is valid and whether the Magistrate can take cognizance of the case. Thus, I find that the question raised in this case is directly answered in Subash's case. In this decision, the Division Bench of this Court held as follows: “6. Hence while dealing with abkari offence, the special provisions made in the Abkari Act should be strictly followed. Learned Government Pleader cited decision of a Division Bench of this Court in Hassan v. State of Kerala, 1989(2) KLT 58 wherein it was held that investigation by Assistant Sub Inspector of Police will not vitiate the trial. It was also stated that there was a notification by the Government empowering the Assistant Sub Inspector to exercise all powers of the Sub Inspector. The above notification is published in 1973 as G.O.MS 217/73. Coupled with S.13(2) of the Interpretation and Crl.R.P.No.1900 of 2013 9 General Clauses Act, the Assistant Sub Inspector in this case be specifically authorized to do the act of Sub Inspector. But there is no such notification issued under the Abkari Act. None of the provisions in the Abkari Act gives power to any authority to issue such notification. Even Cr.P.C does not contain any such provision conferring on the Government power to issue notification conferring power of an officer to any other inferior officer under S.36, when only a Superior Officer is to exercise power of the officer in charge of a police station. The Allahabad High Court in Ram Pargas v. Emperor, AIR 1948 All. 129, while interpreting S.19 of the General Clauses Act held as follows:- “The subordinate entering into the real functions of his superior by authority of law is one thing, but the subordinate using the powers vested in the superior without a legal sanction or delegated of authority by the superior is quite another. The section protects the former but not the latter incident. S.7 of the Extradition Act conferred the power of issuing a warrant for extradition proceedings on the political agent, but when a warrant for extradition was issued not by the political agent but by another officer subordinate to the political agent, and there was no provision in the Act for delegation of powers by the political agent to any other functionary Crl.R.P.No.1900 of 2013 **==> picture [13 x 10] intentionally omitted <==** working under him, it was held by the High Court of Allahabad that the warrant thus issued by an officer other than the political agent was illegal.” Further when it specifically states that Abkari Officer must be a police officer above the rank of Sub Inspector and that a police officer below the rank of Sub Inspector of Police cannot be termed as the Abkari Officer. Apart from the above, the learned Public Prosecutor was not able to produce the notification mentioned in Hassan's case. Further, we also note that in Hassan's case a Divisions Bench of this Court was considering the question regarding Edible Oil Seeds, Edible Oils, Vanaspati and Baby Food Dealers Licensing Order, 1975. There, Sub Inspector was authorized to conduct search and investigation. But there was no provision like filing of a report before the Court by an officer below the rank of S.I of Police. Irregularity in investigation is considered under S.527 as held by the Apex Court in H.N Rishbud and Inder Singh vs. State of Delhi, AIR 1955 SC 196. Irregularity in investigation is different from lack of power to initiate prosecution. S.50 of the Abkari Act says that as soon as the investigation into the offences under this Act is completed, the Abkari Officer shall forward to the Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-s (2) of S. 173 of Code of Criminal Procedure, 1973. The Assistant Sub Crl.R.P.No.1900 of 2013 11 Inspector in this case was not even holding charge of Sub Inspector or officiating as Sub Inspector at the time of filing the report. Therefore S.13(2) of the Interpretation and General Clauses Act, 1125 also will not enable the Asst. Sub Inspector of Police as an officer of the rank of Sub Inspector of Police, not below the rank of Sub Inspector of Police mentioned in the Statute. It was also contended by learned counsel for the appellant that power to conduct investigation and power to prosecute are different powers as held in Raj Kumar Karwal vs. Union of India and Others ((1990) 2 SCC 409). Mere illegality or irregularity of investigation will not vitiate the trial. It is a well settled principle that a defect or illegality in investigation however serious has no direct bearing on the competence or procedure relating to cognizance or trial. But that is different from taking cognizance of the offence on the basis of a report by an officer not authorized under law. The Magistrate has no power to take out cognizance of the case on the report of an officer other than an Abkari Officer and it will go to the root of the matter. A Full Bench of this Court in State of Kerala v. V.P Enadeen (1971 KLT 19= AIR 1971 Ker. 193) held that a Magistrate has no jurisdiction to take cognizance of an offence upon a complaint filed by a person not authorized to institute prosecution under S.28(1) of Prevention of Food Adulteration Act and Crl.R.P.No.1900 of 2013 12 the Magistrate cannot either acquit or convict the accused as he cannot take cognizance of the offence on the report filed by a person not authorized to institute prosecution. In view of the above decision, I find that the investigation and lying of charge by an incompetent officer vitiates the trial and no conviction can be based on such a trial. The court below has not considered this question in its correct perspective. Therefore, I am inclined to set aside the conviction entered and sentence imposed on the revision petitioner in the instant case and I do so. The revision petitioner will stand acquitted of the offence under Sec.15(c) read with 63 of the Abkari Act. This revision petition is allowed accordingly. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge