Kunhanna Poojari v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 08TH DAY OF AUGUST 2019 / 17TH SRAVANA, 1941** ## **CRL.A.No.1999 OF 2006** **AGAINST THE JUDGMENT CONVICTION AND SENTENCE IN SESSIONS CASE NO.183/2003 OF THE COURT OF ADDITIONAL SESSIONS (ADHOC COURTIII) KASARAGOD** ## **APPELLANT/ACCUSED:** **KUNHANNA POOJARI AGED 42 YEARS S/O.KORAKA POOJARI, NEAR BADIYAR TEMPLE, BEYAR VILLAGE, KASARGOD.** **BY ADVS. SRI.M.SASINDRAN SRI.K.P.HARISH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA ERNAKULAM.** **SRI.C.M.KAMMAPPU - SR.P.P** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-072019, THE COURT ON 08-08-2019 PASSED THE FOLLOWING:** ## **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.1999 of 2006 -------------------------------------------Dated this the 8[th] day of August, 2019 ## **J U D G M E N T** The appellant is the accused in the case S.C.No.183/2003 on the file of the Court of Session, Kasaragod. The appeal is filed assailing the conviction entered and sentence passed against him under Section 55(a) of the Abkari Act, 1077. 2. The prosecution case is that on 26.09.2001, at about 18.15 hours, at a public road at the place Badiyar in Bayar Village, the appellant was found having in his possession 16 bottles, each bottle containing 375 ml. of Indian Made Foreign Liquor (for short 'IMFL'), which was permitted to be sold only in the State of Karnataka. PW4, the Sub Inspector of Manjeshwar police station, found the accused with the bottles of liquor in possession and he seized the liquor as per Ext.P3 mahazar and arrested the appellant from the spot. 3. The appellant pleaded not guilty to the charge framed by the trial court under Section 55(a) of the Abkari Act. The Crl.A.No.1999/2006 3 prosecution examined PW1 to PW6 and marked Exts.P1 to P7 and MO1 series. No evidence was adduced by the appellant. 4. The trial court found the appellant guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. 5. Heard learned counsel for the appellant and the learned Public Prosecutor and perused the records. 6. PW2 is the independent witness examined by the prosecution. He did not support the prosecution case. PW3 and PW5 are only attestors to Ext.P1 scene mahazar. 7. PW4 is the Sub Inspector who detected the alleged offence. He has given evidence regarding the occurrence almost in tune with the prosecution case. PW1 is the police constable who was in the police party led by PW4. His evidence corroborates the testimony of PW2 on the material particulars of the occurrence. Crl.A.No.1999/2006 4 8. There is no striking improbability or material contradiction or discrepancy in the evidence of PW1 and PW4 regarding the seizure of 16 bottles of IMFL from the possession of the appellant. There is nothing to show that PW4 had falsely implicated the appellant in a case of this nature. Seizure of 16 bottles of IMFL, each bottle containing 375 ml. of liquor, stands proved by the evidence of PW1 and PW4. 9. Learned counsel for the appellant submitted that though the chargesheet in the case was filed by PW4 Sub Inspector of Police, the investigation of the case was conducted by PW6, who was the Sub Inspector of Kumbala police station. Learned counsel would contend that the offence was allegedly committed within the territorial limits of Manjeshwar police station and the Sub Inspector of Kumbala police station had no authority to conduct the investigation of the case. Learned counsel would further contend that trial of the accused and conviction entered against him are vitiated for the reason that investigation into the offence was conducted not by an Abkari Officer as required under law. Crl.A.No.1999/2006 5 10. Sections 44 to 50 of the Abkari Act deal with investigation of the offences under the Act. It is evident from these provisions that only an 'Abkari Officer' has got authority to conduct investigation of the offences under the Abkari Act. As per the definition given in Section 3(2) of the Abkari Act, 'Abkari Officer' means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5 of the Act. Section 4(d) of the Abkari Act empowers the Government, by notification in the gazette, to appoint officers to perform the acts and duties mentioned in Sections 40 to 53 of the Act. 11. In exercise of the powers under Section 4 of the Abkari Act, the Government have issued a notification as G.O (P) No.69/96/TD dated 29/03/1996 which was published in the gazette as S.R.O No.321/96. As per this notification, 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 have been appointed as Abkari Officers under their respective jurisdiction for the purposes of Crl.A.No.1999/2006 6 Sections 31 to 35, 38, 40 to 53 and 59 of the Abkari Act and to exercise all the powers and to discharge all the duties conferred and imposed on the Abkari Officers in the aforesaid sections. 12. A close scrutiny of the terms of the notification referred to above would show that a police officer in the rank of Sub Inspector, who is invested with the powers of an 'Abkari Officer', has authority to exercise such powers only within his jurisdiction, which includes territorial jurisdiction. He cannot exercise the powers of an 'Abkari Officer' outside his territorial jurisdiction (See **Narayanankutty v. State of Kerala : 2015 (1) KHC 702, Rajappan v. State of Kerala : 2016 (3) KHC 356** and **Velutha v.Sub Inspector of Police : 2016 (4) KHC 206: 2016 (3) KLT 846** ). 13. In the instant case, the occurrence was within the territorial jurisdiction of Manjeshwar police station. PW6, who conducted the investigation of the case, was the Sub Inspector of Kumbala police station. He had no authority to exercise the powers of an 'Abkari Officer' and to investigate an abkari offence which was committed within the territorial limits of Manjeshwar Crl.A.No.1999/2006 7 police station. 14. PW6 has stated that he conducted the investigation of the case as per the direction given by the Kumbala Circle Inspector. The Circle Inspector had power to conduct the investigation of an abkari offence committed within the limits of his jurisdiction. But, he had no authority to delegate such power to another officer. As per Section 4(g) of the Abkari Act, delegation of such power can be made only by the Government. The direction, if any, given by the Circle Inspector did not confer any power upon PW6 to conduct the investigation of the case. The authority, if any, granted by the Circle Inspector of Police cannot be a ground for exercising jurisdiction by a Sub Inspector of Police beyond his territorial jurisdiction (See **Narayanankutty v. State of Kerala : 2015 (1) KHC 702** ). 15. When the investigation of an abkari offence was conducted not by an Abkari Officer as defined under the Abkari Act, conviction entered against the accused cannot be sustained (See **Mahesh v. State : 2017 (1) KHC 120** ). Crl.A.No.1999/2006 8 16. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant by the trial court under Section 55(a) of the Abkari Act is set aside. The appellant is found not guilty of the aforesaid offence and he is acquitted. Bail bond, if any, executed by the appellant stands cancelled and he is set at liberty. Fine amount, if any, remitted by the appellant shall be refunded to him. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/07/08/2019 TRUE COPY PS TO JUDGE