Krishnan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937 CRL.A.No. 505 of 2006 (F ) -------------------------- AGAINST THE JUDGMENT IN SC 874/2004 of ADDL.SESSIONS COURT (ADHOC)-I, KASARAGOD DATED 2.2.2006 CP 195/2004 of JUDICIAL FIRST CLASS MAGISTRATE'S COURT,KASARAGOD ## APPELLANT/ACCUSED: ------------------------ KRISHNAN, S/O. RAMAN, PERLADUKAM, KOLATHUR VILLAGE, KASARAGOD. BY ADV. SRI.K.K.MOHAMED RAVUF ## RESPONDENT/COMPLAINANT: ---------------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J. = = = == = = = = = = = = = = = = = = Crl.A. No. 505 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 13[th] day of January, 2016** ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Kasaragod, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. one lakh and, in default of payment of fine, to undergo rigorous imprisonment for a period of one month. 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: On getting information at about 6.30 p.m. on 7.6.2003 that the appellant was prevented from moving CRA 505/2006 2 away from Eyyala in Kolathur Village by the members of the 'Janakeeya Committee' while he was selling packet arrack imported from Karnataka, PW8, the Sub Inspector of Police, and his party left for that place and reached there at 7 p.m. when the appellant was seen there holding a plastic sack in his hand surrounded by a few people. On examining that plastic sack, 175 packets each containing 100 ml. of Karnataka arrack were found in it. Since the appellant has committed an offence, he was arrested by PW8 at 7.10 p.m. preparing Ext.P2 Arrest Memo in the presence of witnesses. PW8 had taken two sets of three packets as samples in two 375 ml. bottles and sealed them. 169 packets containing 100 ml. each of arrack, two sample bottles, six empty packets and the plastic sack were seized by PW8 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW8 and his party reached Bedakam Police Station and registered Crime No.86 of 2003 of that Police Station in respect of the occurrence. Ext.P5 is the F.I.R. CRA 505/2006 3 thus drawn by PW8. The appellant, properties and the records were produced before the Judicial First Class Magistrate's Court, Kasaragod. Ext.P6 is the List of Property and Ext.P7 is a copy of the Forwarding Note. Ext.P3 is the Site Plan showing the place of occurrence prepared by PW4, the Village Officer, Kolathur. PW5, the Sub Inspector of Police, Bedakam, has questioned PW4 and recorded his statement. PW7, the Sub Inspector of Police, Adhur Police Station, has conducted the investigation of the case. He has gone to the place of occurrence and prepared Ext.P4 Scene Mahazar. He has questioned the witnesses and recorded their statements. PW6, the Sub Inspector of Police, Bedakam, has completed the investigation and submitted the Final Report before the court. Ext.P8 is the Certificate of Chemical Analysis issued from the Regional Chemical Examiner's Laboratory, Kozhikode. Ext.P9 is the Inventory prepared in respect of the properties produced before the court. CRA 505/2006 4 4. The learned Magistrate committed the case to the Court of Session, Kasaragod, and, from there, it was made over to the Additional Sessions Court (Adhoc)-I, Kasaragod. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 8 and marked Exts.P1 to P9 on their side. The appellant was examined 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 offence under Section 55(a) 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 the sentence passed against him. This Court need not go into all those contentions for CRA 505/2006 5 disposing of this appeal. The investigation of the case was conducted by PW7, the Sub Inspector of Police, Adhur Police Station. The occurrence in this case has not taken place within the jurisdiction of PW7. But, it has taken place within the jurisdiction of PWs. 5, 6 and 8. They were the Sub Inspectors of Police, Bedakam Police Station. 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.No.321/96. 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, CRA 505/2006 6 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, 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 CRA 505/2006 7 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 has been conducted by PW7. He was entitled to exercise jurisdiction only within the territorial limits of Adhur Police Station. The Sub Inspector of Police, Adhur Police Station, does not have jurisdiction as an Abkari Officer within the territorial limits of Bedakam Police Station. The occurrence in this case took place within the limits of Bedakam Police Station. 6. A learned single Judge of this Court in **Saji @ Kochumon v. State of Kerala(2010(3)KLT 471)** 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 CRA 505/2006 8 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 CRA 505/2006 9 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 Sub Inspector of Police authorised to act as Abkari Officer can exercise his jurisdiction only within the territorial limits of his police station. Therefore, PW7, the Sub Inspector of Police, Adhur Police Station, has exceeded the limits of his jurisdiction by investigating the case on hand which was within the territorial limits of Bedakam Police Station. 7. PW7 deposed before the court that Bedakam Police Station and Adhur Police Station are under the Adhur Circle and he has conducted the investigation of the case as directed by the Circle Inspector of Police, Adhur. The Circle Inspector of Police had no authority to empower PW7 to conduct the investigation of the case. Such power must be conferred on PW7 by a Notification issued by the CRA 505/2006 10 Government of Kerala under Section 4 of the Abkari Act. In the absence of such a Notification, the investigation conducted by PW7 cannot be accepted to be a legal one even if it was done as directed by the Circle Inspector of Police, Adhur. 8. Since the investigation of the case was conducted by 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 by the court below against the appellant CRA 505/2006 11 are liable to be set aside. 9. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is discharged and 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 CRA 505/2006 12