M. Mathew v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 21ST DAY OF JUNE 2016/31ST JYAISHTA, 1938 Crl.Rev.Pet.No. 2830 of 2009 (C) ------------------------------------AGAINST THE JUDGMENT IN CRA 162/2007 of ADDL. SESSN.COURT (ADHOC-II) KASARAGODE DATED 04-07-2009 AGAINST THE JUDGMENT IN SC 820/2004 of ASST. SESSIONS COURT, HOSDURG DATED 26-03-2007 ----- REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------- M.MATHEW, S/O.MATHAI, KUNNAPPALLY VEEDU, MARUTHUMKULAM, BALAL VILLAGE. BY ADV. SRI.SUNNY MATHEW RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------- STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, VELLARIKUNDU POLICE STATION, REPRESENTED BY THE PUBLIC, PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MS.LILLY LESLIE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. R. P. No.2830 of 2009 -----------------------------------------------Dated this the 21[st] day of June, 2016 ## **ORDER** 1. kThe petitioner was convicted by the trial court for the offence under Section 55(g) of the Abkari Act. He was sentenced to undergo simple imprisonment for three years and to pay a fine of 1 lakh and, in default of payment of₹ fine, to undergo simple imprisonment for nine months. The petitioner preferred an appeal challenging the conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction of the petitioner for the offence under Section 55(g) of the Abkari Act. But, modified the sentence to that of imprisonment for three months and to pay a fine of 1 lakh and, in default of₹ payment of fine, to undergo simple imprisonment for 15 days. Challenging the correctness, legality or propriety of the conviction and sentence, the petitioner has preferred this revision petition. Crl. R. P. No.2830 of 2009 -2- 2. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW1, the Sub Inspector of Police, Vellarikundu Police Station, on getting information that illicit distilling of arrack was going on in the house of the petitioner, after sending Ext.P1 Search Memo to the court, conducted a search in that house along with his party at 7.30 p.m. on 16-04-2002. During the search, 60 litres of wash was found in one aluminium vessel and in two aluminium pots in the kitchen of that house. The petitioner was present there. Since the petitioner had committed an offence under the Abkari Act, he was arrested then and there by PW1 preparing Ext.P2 Arrest Memo. The contraband was seized preparing Ext.P3 Search List. PW1 had drawn two samples of 650 ml. each of wash in two separate 750 ml. bottles from the bulk contained in the aluminium vessel. The sample bottles were sealed. Crl. R. P. No.2830 of 2009 -3- Thereafter, PW1 and his party reached Vellarikundu Police Station with the petitioner, contraband and the records. PW1 registered a case in respect of the occurrence. Ext.P4 is the F.I.R. thus drawn by PW1. He had produced the petitioner along with Remand Report before the Judicial First Class Magistrate's Court-II, Hosdurg. He had also produced the properties along with Ext.P5 List of Property. The investigation of the case was conducted by PW8, the Sub Inspector of Police, Chittarikkal Police Station. He had questioned the witnesses and recorded their statements. Subsequently, the investigation was continued by PW6, the Sub Inspector of Police, Vellarikundu Police Station. He had completed the investigation and submitted the Final Report before the court. 4. Learned Magistrate committed the case to the Court of Session, Kasaragod, and, from there, it was made over to the Assistant Sessions Court, Hosdurg. The Assistant Sessions Court, Hosdurg, framed a charge against the Crl. R. P. No.2830 of 2009 -4- petitioner alleging the offence under Section 55(g) of the Abkari Act. The petitioner pleaded not guilty of the charge. The prosecution examined PWs.1 to 8 and marked Exts.P1 to P10 and MOs.1 to 3 on their side. The petitioner was examined under Section 313 of Cr.P.C. He denied the incriminating circumstances shown against him. He submitted that he was falsely implicated in this case. Ext.D1 was marked on the side of the defence. The trial court, after considering the matter, found the petitioner guilty of the offence under Section 55(g) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. The appellate court confirmed the conviction of the petitioner for the offence under Section 55(g) of the Abkari Act. But, the sentence was modified. 5. The petitioner has raised various contentions challenging the conviction and sentence passed against him. This Court need not go into all those contentions for Crl. R. P. No.2830 of 2009 -5- disposing of this revision petition. The investigation of the case was conducted by PW8, the Sub Inspector of Police, Chittarikkal Police Station. There is no dispute with regard to the fact that the occurrence in this case had taken place within the jurisdiction of PW1, the Sub Inspector of Police, Vellarikundu Police Station, and not within the jurisdiction of PW8. PW1 had detected the offence. He was a competent officer for doing the same. But, the investigation was conducted by PW8. 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 had been issued by the Government of Kerala which is S.R.O. No.321 of 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 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, -6- Crl. R. P. No.2830 of 2009 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 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 was Crl. R. P. No.2830 of 2009 -7- conducted by PW8. He was entitled to exercise jurisdiction only within the territorial limits of Chittarikkal Police Station. The Sub Inspector of Police, Chittarikkal Police Station, does not have jurisdiction as an Abkari Officer within the territorial limits of Vellarikundu Police Station as the occurrence took place within the territorial limits of Vellarikundu 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 Inspector of Police in charge of law and order and working in Crl. R. P. No.2830 of 2009 -8- 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. 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, PW8, the Sub Inspector of Police, Chittarikkal Police Station, had exceeded the limits of his jurisdiction by investigating the case on hand which was within the territorial limits of Vellarikundu Police Station. 7. Since the investigation was conducted by PW8, an incompetent officer, the trial court had no jurisdiction to take cognizance of the offence alleged in the complaint filed Crl. R. P. No.2830 of 2009 -9- based on such investigation. Consequently, the trial court could not have framed a charge against the petitioner 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 trial court, it cannot end either in conviction or in acquittal. The revision petitioner 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 petitioner are liable to be set aside. The petitioner is entitled to be discharged in this case. 8. In the result, the conviction and sentence passed against the petitioner for the offence under Section 55(g) of the Abkari Act by the courts below are set aside. The petitioner is discharged. He is set at liberty. The bail bond executed by the petitioner shall stand cancelled. The amount, if any, deposited by the petitioner as directed by -10- Crl. R. P. No.2830 of 2009 this Court shall be returned to him. This Criminal Revision Petition is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE