Kunhu alias Moothedathu Devassya v. State of Kerala

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. 1728 of 2006 --------------------------- AGAINST THE JUDGMENT IN SC 331/2005 of ADDL.SESSIONS COURT (ADHOC)II, THALASSERY DATED 21-07-2006 CP 176/2004 of J.M.F.C.,MATTANNUR APPELLANT/ACCUSED: -------------------- KUNHU ALIAS MOOTHEDATHU DEVASSYA, S/O.MATHAI, AGED 49 YEARS, COOLIE, NUCHYAD AMSOM, CHERYAMAVU, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT/COMPLAINANT: -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SMT. LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-032016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 1728 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 14[th] day of March, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-II, Thalassery, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of ₹ 1,00,000/- (Rupees one lakh only) and, in default of payment of fine, to undergo rigorous imprisonment for one month. 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: CRA 1728/2006 2 PW1, the Sub Inspector of Police, Ulikkal Police Station, and his party were on patrol at about 3 p.m. on 23.12.2002. When they reached Manikkadavu, the police party received reliable information that the appellant was keeping arrack in his house for the purpose of sale. Therefore, the police party reached the house of the appellant at Cheryamavu at 3.10. p.m. After sending Ext.P6 Search Memo to the court, the police party commenced search at the house of the appellant. The appellant was present there. During search, a 10 litre jerrycan was found in the kitchen of that house. On examining that jerrycan, it was found that it contained 5 litres of arrack. Since the appellant had committed an offence under the Abkari Act, he was arrested by PW1 preparing Ext.P1 Arrest Memo. He had drawn 375 ml. of arrack as sample in a 375 ml. bottle from the bulk contained in the jerrycan. The sample bottle and the jerrycan containing rest of arrack were sealed and seized by PW1 under Ext.P2 Search List. Thereafter, PW1 and his party CRA 1728/2006 3 reached Ulikkal Police Station with the appellant, contraband including sample and the records. PW1 registered Crime No. 282 of 2002 of that Police Station in respect of the occurrence. Ext.P3 is the FIR thus drawn by PW1. He had produced the appellant, contraband including sample and the records before the Judicial First Class Magistrate's Court, Mattannur. Ext.P4 is the List of Property and Ext.P5 is a copy of the Forwarding Note. Ext.P6 is the Search Memo. Ext.P7 is the Certificate of Chemical Analysis issued from the Regional Chemical Examiner's Laboratory, Kozhikode. Ext.P8 is the Inventory of the liquor seized. Ext.P9 is the Ownership Certificate and Ext.P10 is the Scene Mahazar. The investigation of the case was conducted by PW4, the Sub Inspector of Police, Karikottakari Police Station. He had gone to the place of occurrence and prepared Ext.P10 Scene Mahazar. He had questioned the witnesses and recorded their statements. The Final Report was submitted before the court by PW1. CRA 1728/2006 4 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thalasserry, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-II, Thalassery. 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 4 and marked Exts.P1 to P10 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 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 sentence passed against him. CRA 1728/2006 5 This court need not go into all those contentions for disposing of this appeal. PW1, the Sub Inspector of Police, Ulikkal Police Station, has detected the offence. He was a competent officer for doing the same. But, the investigation of the case was conducted by PW4, the Sub Inspector of Police, Karikottakari Police Station. The alleged occurrence in this case had taken place within the territorial limits of Ulikkal Police Station and not within the limits of Karikottakari Police Station. Learned counsel for the appellant submits that since the alleged occurrence had taken place within the territorial limits of Ulikkal Police Station, PW4, the Sub Inspector of Police, Karikottakari Police Station, had no power or jurisdiction to conduct the investigation of the 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.No.321/96. It reads as follows: CRA 1728/2006 6 “ **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 CRA 1728/2006 7 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 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 PW4. He was entitled to exercise jurisdiction only within the territorial limits of Karikottakari Police Station. The Sub Inspector of Police, Karikottakari Police Station, does not have jurisdiction as an Abkari Officer within the territorial limits of Ulikkal Police Station as the CRA 1728/2006 8 occurrence in this case had taken place within the limits of Ulikkal 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 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 CRA 1728/2006 9 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.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 CRA 1728/2006 10 jurisdiction only within the territorial limits of his police station. Therefore, PW4, the Sub Inspector of Police, Karikottakari Police Station, had exceeded the limits of his jurisdiction by investigating the case on hand which was within the territorial limits of Ulikkal Police Station. 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 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 against the appellant are liable to be set aside. He is CRA 1728/2006 11 entitled to be discharged in this case. 7. 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/- **BABU MATHEW P. JOSEPH** **JUDGE** ks. True copy P.S. (Hr.Gr.)To Judge CRA 1728/2006 12