Gopi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** ## **TUESDAY, THE 26TH DAY OF AUGUST 2014/4TH BHADRA, 1936** ## **CRL.A.No. 1182 of 2005** **---------------------------** **AGAINST THE JUDGMENT IN SC 227/2003 of ADDITIONAL SESSIONS COURT, FAST TRACK COURT NO. I (ADHOC), MANJERI DATED 06-07-2005** **C 24/2003 of THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE, NILAMBUR** **APPELLANT(S)/ACCUSED.:** ## **GOPI, S/O.KORUKUNHAN, NEDUKKADAN HOUSE, VAZHIKKADAVU, KARAKKODE, MALAPPURAM DIST.** **BY ADV. SRI.BABU S. NAIR** **RESPONDENT/STATE.:** **THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLCIE, VAZHIKKADAVU POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, KOCHI 31.** **R1 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl. A. No. 1182 of 2005 = = = = = = = = = = = = = = = = = = = Dated this the 26[th] day of August, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Manjeri, for the offence under Section 55 (a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for one year. Challenging the conviction and sentence so 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: PW1, the Circle Inspector of Police, Nilambur, received reliable information on 20-7-2001 that the appellant was CRA. 1182/2005 2 keeping illicit arrack and the utensils for manufacturing illicit arrack in his house. After preparing Search Memo and sending the same to the court, PW1 and his party reached the house of the appellant at 6.15 p.m. The appellant was present in his house at that time. After informing the matter to him, PW1 conducted a search in that house. During the search, a 5 litre black jerrycan containing full of illicit arrack was found in that house. Since the appellant had committed an offence, he was arrested then and there by PW1 preparing Ext. P2 Arrest Memo. Ext. P3 is the Notice of Arrest. When the search was continued, a plastic pot containing wash used for manufacturing arrack and two jerrycans of one litre and two litre each smelling arrack near that pot were also found in that house. PW1 had drawn about 350 ml.of arrack in a bottle as sample from the bulk contained in the jerrycan. The sample bottle and the jerrycan were sealed and labelled. He had also drawn about 500 ml. of wash in a bottle and sealed the same. The CRA. 1182/2005 3 remaining wash contained in the pot was destroyed. All the items mentioned were seized by PW1 describing them in Ext.P1 Search List in the presence of witnesses. Thereafter, PW1 reached Vazhikkadavu Police Station and registered Crime No. 91 of 2001 of that Police Station in respect of the occurrence. Ext.P4 is the F.I.R. thus drawn by PW1. He had produced the properties including the samples before the court. Ext.P5 is the List of Property and Ext.P6 is the copy of the Forwarding Note. 4. The investigation of the case had been conducted by CW12, the Circle Inspector of Police, Vandur. He had gone to the scene place and prepared Ext.P9 Scene Mahazar in the presence of witnesses. He had questioned the witnesses and recorded their statements. PW7, ASI (Station House Officer), Vazhikkadavu Police Station, had completed the investigation and submitted the Final Report before the Judicial First Class Magistrate's Court, Nilambur. CRA. 1182/2005 4 5. The learned Magistrate committed the case to the Court of Session, Manjeri, and, from there, it was made over to the Assistant Sessions Court, Manjeri. A charge was framed against the appellant alleging the offence under Section 55(a) and (g) of the Abkari Act. The appellant pleaded not guilty of the charge. Later, the case was transferred to the Additional Sessions Court(Adhoc)-I, Manjeri. 6. The prosecution examined PWs.1 to 7 and marked Exts.P1 to P12 and MOs.1 to 4 on their side. The appellant was questioned under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. The defence had 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 not found guilty of the offence under Section 55(g) of the Abkari Act and hence he was acquitted of that offence. He was heard on the question CRA. 1182/2005 5 of sentence and imposed the sentence on him. 7. The appellant has raised various contentions challenging the conviction and sentence passed against him. The investigation of the case was conducted by CW12, the Circle Inspector of Police, Vandur. The occurrence in this case had not taken place within the jurisdiction of CW12. But, it had taken place within the jurisdiction of PW1. There is no dispute in regard to these facts. 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 had been issued by the Government of Kerala which is S.R.O.No.321 of 1996. 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 CRA. 1182/2005 6 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 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 to 35, 38, 40, 41 to 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 the Sections aforesaid. Therefore, a police officer of and above the rank of Sub Inspector of Police appointed as an Abkari Officer can exercise CRA. 1182/2005 7 jurisdiction as Abkari Officer only under their respective jurisdiction. Here, the investigation has been conducted by CW12. He was entitled to exercise jurisdiction only within the territorial limits of Vandur Circle. The Circle Inspector of Police, Vandur Circle, does not have jurisdiction as an Abkari Officer within the territorial limits of Nilambur Circle as the occurrence in this case had taken place within the limits of Nilambur Circle. 8. A learned single Judge of this Court in **Saji @ Kochumon v. State of Kerala(2010(3)KLT 471)** had 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 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 CRA. 1182/2005 8 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 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 Circle Inspector of Police authorised to act as Abkari Officer can exercise jurisdiction only within the territorial limits of his Circle. CRA. 1182/2005 9 Therefore, CW12, the Circle Inspector of Police, Vandur, had exceeded the limits of his jurisdiction by investigating the case on hand which was within the territorial limits of Nilambur Circle. As the investigation was conducted by CW12, 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 could not have framed charge against the accused 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. Since the appellant is entitled to be discharged on the CRA. 1182/2005 10 ground already explained, this Court need not go into the other aspects of the matter. 9. 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. (Hr.Gr.)To Judge