Kocha S/o Neelakanda v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 22ND DAY OF SEPTEMBER 2014/31ST BHADRA, 1936** **CRL.A.No. 208 of 2004 (C) --------------------------** **AGAINST THE ORDER/JUDGMENT IN SC 249/2002 of ADDL.SESSIONS COURT, FAST TRACK NO.II, PALAKKAD DATED 05-01-2004** **APPELLANT/ACCUSED:** **------------------** **KOCHA, S/O. NEELAKANDA, PERUMBAYIL, MUPPUZHA, H.NO. X/253, KUTHANUR VILLAGE, ALATHUR TALUK.** **BY ADV. SRI.SANTHEEP ANKARATH** ## **RESPONDENT/COMPLAINANT:** **-----------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **P.P. SMT. SEENA RAMAKRISHNAN.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON** **22-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.A.No.208 of 2004 .................................................. Dated this the 22[nd] day of September, 2014. ## **JUDGMENT** The accused in SC.249/2002 on the file of the Additional Sessions Court, Fast Track No.II, Palakkad is the appellant herein. 2. The appellant was charge sheeted by the Sub Inspector of Police, Kozhalmannam police station under Section 55(g) of the Abkari Act in Crime No.222/2000 of Kozhalmannam police station. 3.The case of the prosecution in nutshell was that on 30.7.2000, at about 4.30 p.m, the accused was found to be in possession of 15 litres of wash in a plastic pot, which is a material used for manufacturing arrack in the corridor of his house bearing No.V/508 (New No.X/253) of Kuthanoor panchayat at Muppazha, Perumbayil in violation of the Abkari Act and thereby he had committed the office punishable under Section 55 (g) of the Abkari Act. 4. After investigation, final report was filed before the Judicial First Class Magistrate Court-I, Palakkad and the learned Magistrate had committed the case to the Court of Sessions, Crl.A.No.208 of 2004 2 Palakkad, where it was taken on file as S.C.No.249/2002 and originally it was made over to Additional Assistant Sessions Court, Palakkad for disposal. Thereafter it was withdrawn and made over to Additional Sessions Court, Fast Track-II, Palakkad for disposal. 5. When the appellant appeared before court below, after hearing the counsel for the appellant and the learned Additional Public Prosecutor, charge under Section 55(g) of the Abkari Act was framed and the same was read over and explained to him and he pleaded not guilty. 6. In order to prove the case of the prosecution, Pws 1 to 4 were examined and Exts.P1 to P10 and MO1 were marked from the side of the prosecution. After closure of the prosecution evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure (hereinafter referred to as the Code) and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that he was arrested from a tea shop and not from the house. Since the evidence in the case did not warrant an acquittal under Section 232 of the Code, the learned Additional Sessions Judge directed the appellant to enter on his defence, but no defence evidence was adduced on his side. After Crl.A.No.208 of 2004 3 considering the evidence on record, the court below found the appellant guilty under Section 55(g) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for three years and also to pay a fine of Rs. One lakh, in default to undergo simple imprisonment for six months. Set off was allowed for the period of detention undergone as an undertrial prisoner under Section 428 of the Code. Aggrieved by the same, the present appeal has filed by the appellant/accused before the court below . 7. Heard the learned counsel for the appellant and the learned Public Prosecutor. 8. The learned counsel for the appellant submitted that there is nothing on record to show that the accused was in conscious possession of the article and mere possession is not insufficient, which has not been established by the prosecution. Further, he happened to be the owner and occupier of the building alone is not sufficient to prove conscious possession of the article, which to be established by the prosecution independently, which has not been done in this case. Further the detection was made by the Sub Inspector of Police, Alathur police station, who is not the Station House Officer or Abkari Officer authorized to conduct detection or investigation within Crl.A.No.208 of 2004 4 the jurisdiction of Kozhalmannam police station, where the house is situated and thereby the detection is illegal and on the basis of the illegal detection, the court below was not justified in convicting the appellant for the offence alleged and the appellant is entitled to get acquittal of the charge levelled against him giving that benefit. 9. On the other hand, the learned Public Prosecutor argued that the Alathur Sub Inspector had conducted search of the house on the basis of the information given by the Dy.S.P and as such, he is authorized to detect by the superior officer and immediately after detection and seizure, he had handed over the same to the Station House Officer of police station within whose jurisdiction the house is situated and thereafter the investigation was conducted by the authorized Abkari Officer and as such, there is no illegality in the detection and investigation and the court below was perfectly justified in convicting the accused for the offence alleged. 10. The points that arise for consideration are : (1) whether the court below was justified in convicting the appellant for the offence under Section 55(g) of the Abkari Act. (2) If so, the sentence imposed is proper and legal. 11. The case of the prosecution as emerged from the 5 Crl.A.No.208 of 2004 prosecution witnesses was as follows: 12. On 30.7.2000 while PW1 was working as Sub Inspector of Police, Alathur police station, he was informed by the Dy.S.P, Palakkad that the accused by name Kochu is dealing with arrack in his house No.10/253 within the jurisdiction of Kozhalmannam police station and wanted him to conduct search of his house and accordingly he prepared Ext.P1 search memo and sent to the Judicial First Class Magistrate -I, Palakkd and thereafter went to the place along with PW2, the police constable attached to Alathur police station and conducted search of the house with No.10/253 where the accused was found and found MO1 kannas with 15 litres of wash and he had taken two samples and destroyed the balance wash and sealed the same and affixed label containing signature of the accused, witnesses and himself and seized the same as per Ext.P2 search list and thereafter he arrested the accused and prepared Ext.P3 arrest memo and informed the same to his relatives and thereafter came to Kozhalmannam police station, produced the accused and the documents prepared and the articles seized along with Ext.P4 report. Accordingly the head constable of that police station registered Ext.P6 First Information Report as Crime 6 Crl.A.No.208 of 2004 No.222/2000 of Kozhalmannam police station against the accused under Section 55(g) of the Abkari Act. Thereafter the investigation was undertaken by PW4, the Sub Inspector of Police, Kozhalmannam Police Station from 31.7.2000. He went to the place of occurrence and prepared Ext.P5 scene mahazer in the presence of PW3 and another. He questioned the witnesses and recorded their statements. He produced the accused along with remand report and the articles along with the property list on 31.7.2000 itself. He signed Ext.P7 forwarding note along with the request to send samples for Chemical Analysis and accordingly samples were sent from the court for analysis and Ext.P8 Chemical Analysis Report was obtained, which shows that the contents of the samples were having the character of wash and it contained 8.53 and 8.98 % by volume of ethyl alcohol. He completed the investigation and submitted final report. 13. Admittedly, the detection was made by PW1, who is the Sub Inspector of Police, Alathur Police Station and not having jurisdiction over Kozhalmannam police station within whose jurisdiction the house from where the search was conducted is situated. The evidence of PW1 will go to show that he went to that place on getting information from the Crl.A.No.208 of 2004 7 Dy.S.P and conducted search as instructed by the Dy.S.P. After conducting the search, seizure of the articles and arrest the accused, he came to Kozhlamannam police station and produced the same along with Ext.P4 report, on the basis of which, crime was registered by the head constable attached to the Kozhalmannam police station and investigation was conducted by the Sub Inspector of Police, Kozhalmannam, PW4, from the next day onwards. SRO.321/1996 authorizes the Police Officials on and above the rank of Sub Inspector of Police to conduct investigation within their respective jurisdiction under Sections 30 to 35, 38, 50 to 53 and 59 of the Abkari Act. So, it is clear from this that detection, seizure , investigation etc can be conducted only by those persons, who,are authorized by the said notification. In this case, the detection was made by a police officer, who is not an abkari officer for the purpose of conducting investigation within the jurisdiction of Kozhalmannam police station. So detection conducted by a non abkari officer in respect of that police station, that too in a place where he has no jurisdiction itself is illegal. This was so held in the decision reported in **Saji @ Kochumon v. State of Kerala** (2010 (3) KLT 471). Once detection was made by a person, who has no jurisdiction to conduct the same, then the 8 Crl.A.No.208 of 2004 detection is illegal and no conviction can be entered against an accused on the basis of any illegal detention. That be the case, the court below was not justified in coming to the conclusion that prosecution had proved the case against the accused beyond reasonable doubt and conviction was entered by the court below on the basis of the illegal search and detection made by PW1 who is not authorized to conduct any act of detection or seizure or investigation within the jurisdiction of Kozhalmannam police station is also illegal and the same is liable to be set aside and the accused is entitled to get acquittal. So the order of conviction entered by the court below on the basis of the illegal detection made by PW1, who is not an authorized officer to conduct any act within the jurisdiction of Kozhalmannam police station is unsustainable in law and the same is set aside and the appellant is entitled to get that benefit and he is entitled to get acquittal of the charge levelled against him on that ground. So the order of conviction passed by the court below against the appellant under Section 55(g) of the Abkari Act for the reason mentioned above is set aside and the appellant is acquitted of the charge levelled against him giving the benefit of doubt. 9 Crl.A.No.208 of 2004 14. Point No.2: In view of the finding on point No.1, sentence imposed by the court below is also illegal and the same is also set aside. Point No.2 is answered accordingly. In the result, the appellant succeeds and the appeal is allowed . The order of conviction and sentence passed by the court below against the appellant under Section 55(g) are hereby set aside and the appellant is acquitted of the charge levelled against him giving him the benefit of doubt as mentioned above as the search is illegal as detection was made by a person who is not authorized to conduct search in that place which is not within his jurisdiction. He is set at liberty. The bail bond executed by him will stand cancelled. If the appellant had remitted any amount towards the fine imposed as directed by this Court, the lower court is directed to refund the amount to the appellant on his making such an application before that court. Office is directed to communicate this order to the concerned court immediately ## **K. RAMAKRISHNAN, JUDGE.** cl Crl.A.No.208 of 2004 10