Kanarankutty v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 1ST DAY OF JULY 2014/10TH ASHADHA, 1936 CRL.A.No.904 of 2004 (A) -----------------------------AGAINST THE JUDGMENT IN SC 227/2002 of ADDL. DISTRICT & SESSIONS COURT (ADHOC)-II, KOZHIKODE. --------- APPELLANT/ACCUSED:: -------------------------- KANARANKUTTY, 48 YEARS, S/O. CHOYI, PANDARAPARAMBIL HOUSE, POST MANGAD, VIA.UNNIKULAM QUILANDY TALUK. BY ADV. SRI.K.N.SASEENDRAN RESPONDENTS/COMPLAINANT:: ----------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC, PROSECUTOR. 2. S.I. OF POLICE, BALUSSERRY, KOZHIKODE. PUBLIC PROSECUTOR SRI.C.K.JAYAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ============================== **Crl.A. No. 904 of 2004** ================================= **Dated this the 1[st] day of July, 2014** ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)II, Kozhikode, for the offences punishable under Sections 55(h) and 58 of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years each and to pay a fine of 1,00,000/- (Rupees₹ one lakh only) each and, in default of payment of fine, to undergo rigorous imprisonment for six months each for the offences punishable under Sections 55 (h) and 58 of the Abkari Act. Challenging the conviction and sentence so passed by the court below, the appellant has preferred this appeal. 2. The learned counsel for the appellant remained absent consecutively when this appeal was taken up for hearing. Therefore, notice was issued to the appellant for his appearance before this court. But, that notice -2- Crl.A. No. 904 of 2004 returned unserved stating that the addressee expired. Therefore, the learned Public Prosecutor was directed to get a report from the concerned Police Officer on the matter and to file it. Thereafter, the learned Public Prosecutor has submitted a report along with a copy of the Death Certificate of the appellant authenticated by the concerned Sub Inspector of Police. The copy of the Death Certificate shows that the appellant expired during the pendency of this appeal on 19-12-2008. 3. The near relatives of the appellant did not file any application for leave to continue the appeal. Since the sentence awarded by the court below is a composite one of imprisonment and fine, this Court heard the learned Public Prosecutor and also carefully perused the records of the case. 4. The prosecution case is briefly stated as follows: PW1, the Sub Inspector of Police, Balussery Police Station, and his party, on getting information that -3- Crl.A. No. 904 of 2004 the appellant was selling arrack at Mangad in Eeyad Village, went to that place and found that the appellant pouring arrack into a glass tumbler from a jerrycan at about 5.45 p.m. on 25-07-1999. Seeing the police party, the appellant ran away from the scene leaving the can and the glass there. A person who came there to consume liquor also ran away. On examination of the jerrycan, it contained about 5 litres of illicit arrack. PW1 had taken two samples of 375 ml. each in two 375 ml. bottles and sealed them. The jerrycan containing the bulk of arrack was also sealed. The jerrycan containing arrack, samples and the glass tumbler were seized under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW1 reached Balussery Police Station with the contraband items and records and registered Crime No.327 of 1999 of that Police Station against the appellant. Ext.P2 is the First Information Report thus drawn by PW1. He has produced the records before the -4- Crl.A. No. 904 of 2004 court on 26-07-1999. He has also prepared Ext.P3 List of Property and produced the contraband with the samples before the court. He has also submitted the Forwarding Note for the purpose of subjecting the samples to chemical analysis. Ext.P4 is a copy of that Forwarding Note. The appellant was arrested by PW1 on 04-10-1999. Ext.P6 is the Arrest Memo. He was produced before the court on the next day along with Ext.P7 Remand Report. The investigation of the case has been conducted by PW4, the Assistant Sub Inspector of Police, Balussery Police Station. He has questioned the witnesses and recorded their statements. He has also prepared Ext.P8 Scene Mahazar in the presence of witnesses. PW1 has submitted the Final Report before the Judicial First Class Magistrate's Court, Koyilandy. 5. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Kozhikode, and, from there, it was made -5- Crl.A. No. 904 of 2004 over to the Assistant Session's Court, Koyilandy. Later, it was withdrawn and made over to the Additional Session's Court (Adhoc)II, Kozhikode. The court below framed a charge against the appellant alleging the offences punishable under Sections 55(h) and 58 of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P8 and M.Os.1 and 2 on their side. The appellant was questioned under Section 313 of Cr.P.C. He has denied all the incriminating circumstances shown against him. The defence has not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offences under Sections 55(h) and 58 of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 6. The appellant has raised various contentions challenging the conviction and sentence passed against him. In this case, the contraband was allegedly seized by -6- Crl.A. No. 904 of 2004 PW1, the Sub Inspector of Police, at about 6.00 p.m. on 25-07-1999. He claimed that the properties including the contraband were produced before the court on 27-07-1999. Since the Property Clerk was on leave for two days, those properties were returned on that ground. Thereafter, they were produced before the court on 29-07-1999. The explanation thus given by PW1 while he was in the witness box does not appear to be acceptable in the light of the entries made from the court on Ext.P3 List of Property. The properties were produced before the court along with Ext.P3. As claimed by PW1, no entry or endorsement has been made on Ext.P3 to the effect that the properties so produced were returned to PW1. But, it can be seen from the entries made on this document that it was produced only on 29-07-1999. It is seen that the learned Magistrate, on receipt of the properties on 29-07-1999, directed the office of the court to verify and receive the properties. In the light of this cogent evidence -7- Crl.A. No. 904 of 2004 and in the absence of any entry regarding returning of the properties as claimed by PW1, it can safely be found that the properties were produced before the court only on 29-07-1999. What was the reason for occurring such a delay in producing the properties before the court ? PW1 has not explained any reason for the delay thus occurred. Even according to PW1, the properties were produced only on 27-07-1999 after they were allegedly seized by him on 25-07-1999. Even that delay has not been explained by PW1. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the property. A learned single Judge of this Court in **Ramankutty v. Excise Inspector (2013 (3) KHC 308)** found, for the reasons stated therein, that an unexplained delay of a single day was fatal to the prosecution case. None of the official witnesses examined in this case offered any valid reason -8- Crl.A. No. 904 of 2004 explaining the delay occurred in producing the properties before the court. Therefore, the delay occurred in producing the properties before the court is fatal to the prosecution in this case and on that ground alone the appellant is entitled to an order of acquittal. 7. It is the case of the prosecution that, on getting information about the selling of arrack by the appellant, PW1 and his party went to the place of occurrence and detected the crime and seized the contraband under Ext.P1 Seizure Mahazar in the presence of witnesses. A mere reading of Ext.P1 would go to show that the search conducted by PW1 was not at all complying with the mandatory provisions in Section 31 of the Abkari Act. PW1 has not recorded his reasons and grounds of his belief that an offence under the Abkari Act has been committed, in Ext.P1 Seizure Mahazar. In short, Ext.P1 is bereft of the details ought to have found a place in such a document. PW3 was examined as an independent witness -9- Crl.A. No. 904 of 2004 for proving the prosecution case. He did not support at all the prosecution case. He was declared hostile. The other independent witness cited was not examined. In the light of the facts already adverted to, the appellant, at least, is entitled to benefit of doubt. 8. I shall now consider another important question. Admittedly, the investigation of the case has been conducted by PW4, the Assistant Sub Inspector of Police, Balusseri Police Station. Was he a competent Abkari Officer ? The investigation of a case of this nature can only 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 SRO No.321/1996. 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 -10- Crl.A. No. 904 of 2004 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 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 purpose of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, -11- Crl.A. No. 904 of 2004 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 alone can exercise jurisdiction as an Abkari Officer. 9. Section 50 of the Abkari Act deals with investigation into the offence and forwarding of report to the Magistrate. This Section reads as follows : “ **50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-** (1) Every investigation into the offence under this Act shall be completed without unnecessary delay. (2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with -12- Crl.A. No. 904 of 2004 sub-section (2) of section 173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).” Therefore, every investigation into the offence under the Abkari Act shall be conducted by Abkari Officers. And, as soon as the investigation is completed, such Abkari Officer shall forward a report to the Magistrate. In the case on hand, the investigation has been conducted not by an Abkari officer. PW4 was incompetent to conduct such an investigation as he was not invested with the powers of investigation under SRO No.321/1996 issued by the Government of Kerala. 10. 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 could not have framed a charge against the accused as it was without jurisdiction. -13- Crl.A. No. 904 of 2004 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 accused was entitled to be discharged as provided under Section 227 of Cr.P.C. Therefore, in the case on hand, the conviction and sentence passed against the appellant are liable to be set aside. The appellant was entitled to be discharged in this case. In the result, the conviction and sentence passed by the court below against the appellant/accused are set aside. The bail bond executed by the appellant shall stand cancelled. Since the appellant expired during the pendency of this appeal, no further orders are required. Sd/- **BABU MATHEW P. JOSEPH, JUDGE** das & kns //True Copy// P.A. To Judge