IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH
MONDAY, THE 14TH DAY OF MARCH 2016/24TH PHALGUNA, 1937
CRL.A.No.1819 of 2006 (F)
-----------------------------AGAINST THE JUDGMENT IN SC 1206/2004 of ADDL. SESSIONS COURT (ADHOCI), THALASSERY DATED 01-09-2006
CP 146/2003 of J.M.F.C.,KUTHUPARAMBA
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APPELLANT/ACCUSED::
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K. ASHOKAN, S/O. KUNHAN, AGED 40 YEARS, COOLIE, MANANTHERI AMSOM PARAMBUKAVU DESOM, KANNAVAM, THALASSERY TALUK.
BY ADV. SRI.C.P.PEETHAMBARAN
RESPONDENT/COMPLAINANT::
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STATE OF KESRALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING S.H.O., KANNAVAM POLICE STATION, KANNUR.
PUBLIC PROSECUTOR MS.LILLY LESLIE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **BABU MATHEW P. JOSEPH, J.**
-----------------------------------------------Crl. Appeal No.1819 of 2006 -----------------------------------------------Dated this the 14[th] day of March, 2016
## **JUDGMENT**
1. kThe appellant was convicted by the Additional Sessions Court (Ad hoc)-I, Thalassery, for the offences under Section 55(a) and (g) of the Abkari Act. He was sentenced to undergo imprisonment for three months and to pay a fine of ₹ 1 lakh and, in default of payment of fine, to undergo simple imprisonment for 15 days for the offence under Section 55(a) of the Abkari Act. No separate sentence was awarded for the offence under Section 55(g) of the Abkari Act. 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: PW2, the Sub Inspector of Police, Kannavam Police Station,
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and his party were on patrol at about 4.30 p.m. on 16-04-2002. While so, the appellant was seen manufacturing arrack at Channapoil within Kannavam Reserve Forest. Three 10 litre jerrycans were found there. On examining them, each of them contained 10 litres of arrack. The vessels and utensils used for manufacturing arrack were also there. 5000 litres of wash was found in 20 barrels. A sack of jaggery was also found there. The appellant was arrested by PW2 preparing Ext.P2 Arrest Memo. Ext.P3 is the Inspection Memo. PW2 had drawn 375 ml. of arrack as sample in a 375 ml. bottle from each of the three jerrycans containing arrack. He had drawn 375 ml. of wash as sample in a 750 ml. bottle from the bulk of wash. He had also taken 250 gms. of jaggery as sample from the bulk of jaggery kept in the sack. Rest of wash and jaggery were destroyed. Thereafter, PW2 and his party reached Kannavam Police Station with the appellant, properties and the records. PW2 registered crime No.84 of 2002 of that Police Station in respect of the occurrence. Ext.P4 is the F.I.R. thus drawn by PW2. He had
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produced the appellant, properties including the samples and the records before the Judicial First Class Magistrate's Court, Kuthuparamba. Ext.P5 is a copy of the Forwarding Note. Ext.P7 is the Certificate of Chemical Analysis issued from the Regional Chemical Examiner's Laboratory, Kozhikode. The investigation of the case was conducted by PW3, the Additional Sub Inspector of Police, Kadirur Police Station. He had gone to the place of occurrence and prepared Ext.P6 Scene Mahazar. He had questioned the witnesses and recorded their statements. The Final Report was submitted before the court by PW2.
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 court below framed a charge against the appellant alleging the offences under Section 55(a) and (g) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 3 and marked Exts.P1 to P7
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and M.Os.I to VI on their side. The appellant was examined under Section 313 of Cr.P.C. He 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 offences under Section 55(a) and (g) 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. It is the prosecution case that the appellant was found manufacturing arrack and he was also found in possession of 30 litres of arrack. He was arrested by PW2 then and there and the properties including contraband were seized under Ext.P1 Seizure Mahazar. PW2 was a competent officer for doing the same. The investigation of the case was conducted by PW3, the Additional Sub Inspector of Police, Kadirur Police Station. The alleged occurrence in this case had taken place within the territorial limits of Kannavam Police Station and
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not within the territorial limits of Kadirur Police Station. Learned counsel for the appellant submits that PW3 was not a competent officer for conducting investigation in 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.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 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
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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 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 had been conducted by PW3. He was entitled to exercise jurisdiction only within the territorial limits of Kadirur Police Station. The Additional Sub Inspector of Police, Kadirur Police Station, does not have jurisdiction as an Abkari Officer within the territorial limits of Kannavam Police Station as the alleged occurrence in this case had taken place within the limits of Kannavam Police Station.
6. A learned single Judge of this Court in **Saji @**
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**Kochumon v. State of Kerala (2010 (3) KLT 471)** considered the scope of appointment of Abkari Officers under S.R.O.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 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.321 of 1996 as
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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, PW3, the Additional Sub Inspector of Police, Kadirur Police Station, has exceeded the limits of his jurisdiction by investigating the case which was within the territorial limits of Kannavam Police Station.
7. Since the investigation was conducted by PW3, 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 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
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against the appellant are liable to be set aside. He 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/- **JUDGE**
**BABU MATHEW P. JOSEPH**
kns/-
//TRUE COPY//
P.A. TO JUDGE
