Manoj v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 11TH DAY OF AUGUST 2014/20TH SRAVANA, 1936 CRL.A.No. 1509 of 2005 (F) ------------------------------AGAINST THE JUDGMENT IN SC 679/2004 of ADDL.SESSIONS COURT (ADHOC)II, THODUPUZHA DATED 18-08-2005 CP 63/2004 of J.M.F.C.,PEERUMEDU ------- APPELLANT/ACCUSED: ------------------------- MANOJ, S/O.THANKACHAN, PUTHENPARAMBIL HOUSE, PALLIKUNNU P.O. PEERMADE. BY ADVS. SRI.P.RAMAKRISHNAN SMT.A.K.PREETA RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.SEENA KRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.1509 of 2005 -----------------------------------------------Dated this the 11[th] day of August, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-II, Thodupuzha, for the offence under Section 55(a) of the Abkari Act. He was the first accused in the case. He was sentenced to undergo simple imprisonment for six months and to pay a fine of 1 lakh and, in default of₹ payment of fine, to undergo simple imprisonment for three months. The conviction and sentence so passed by the court below are challenged in 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: PW1, the Assistant Excise Inspector, Excise Range Office, Peermade, and his party were inspecting vehicles at Peermade, at about 12.30 p.m. on 11-08-2002. While so, the Crl. Appeal No.1509 of 2005 -2- appellant came to that place by driving an autorickshaw. That was stopped by the excise party. On examining the autorickshaw, four 750 ml. bottles of Majestic XXX Rum were found in a big shopper kept in that autorickshaw. On enquiry, it was revealed that those bottles of Indian made foreign liquor were being transported for the purpose of sale by the second accused who was running a tea shop at Parakkara in Elappara Village. Since the appellant had committed an offence under the Abkari Act, he was arrested then and there preparing Ext.P2 Arrest Memo. PW1 seized the said liquor bottles, autorickshaw, photocopies of the records of the autorickshaw and the big shopper under Ext.P1 Seizure Mahazar in the presence of witnesses. He had drawn 180 ml. of liquor in a 180 ml. bottle as sample from the bottle already opened for the purpose of examination. The sample bottle as well as the other bottles were sealed by PW1. Thereafter, PW1 reached the Excise Range Office, Peermade, with the appellant and the properties and Crl. Appeal No.1509 of 2005 -3- registered Crime No.14 of 2002 of that Range Office. Ext.P3 is the Crime and Occurrence Report thus prepared by PW1. He had produced the accused and the properties before the court. Ext.P4 is the List of Property. The autorickshaw was produced before the Assistant Excise Commissioner. The initial investigation of the case had been conducted by PW4, the Excise Inspector, Excise Range Office, Peermade. He had questioned two witnesses and recorded their statements. PW5, the Excise Inspector, Excise Range Office, Peermade, continued the investigation of the case. He had questioned rest of the witnesses and recorded their statements. After completing the investigation, he had submitted the Final Report before the Judicial First Class Magistrate's Court, Peermade. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thodupuzha, and, from there, it was made over to the Additional Sessions Court (Adhoc)-II, Thodupuzha. The -4- Crl. Appeal No.1509 of 2005 court below framed a charge against the appellant and the other accused alleging the offence under Section 55(a) of the Abkari Act. The appellant and the other accused pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P7 and MOs.1 to 3 on their side. The appellant was questioned under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against them. The other accused was not questioned under Section 313 of Cr.P.C as no incriminating circumstances appeared against him. The defence had 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. The other accused was found not guilty of that offence and hence he was acquitted of that offence. The appellant 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. Crl. Appeal No.1509 of 2005 -5- But, at the hearing, the contention pressed into service by the learned counsel for the appellant is that PW1, the Assistant Excise Inspector, was an incompetent officer to detect the offence, arrest the appellant and seize the contraband articles. She has relied on S.R.O. No.234 of 1967 issued by the Government of Kerala under the Abkari Act empowering various officers to act in accordance with various provisions of the Abkari Act and the rulings of this Court in **Subrahmaniyan v. State of Kerala (2010 (2) KLT 470)** and in **Sasidharan v. State of Kerala (2012 (2) KLT 392)** and contended that as on 11-08-2002 the Assistant Excise Inspector was not a competent officer to detect the offence, arrest the accused and seize the contraband articles as he was not a notified officer under S.R.O. No.234 of 1967. She further contended that the Assistant Excise Inspector was empowered as an Abkari Officer only as per S.R.O. No.361 of 2009 dated 08-05-2009. On a perusal of S.R.O. No.234 of 1967 and the rulings cited, Crl. Appeal No.1509 of 2005 -6- this Court is satisfied that as on 11-08-2002 the Assistant Excise Inspector, Excise Range Office, Peermade, was not a competent officer to detect the offence, arrest the accused and seize the contraband as contended by the learned counsel for the appellant. Therefore, the court below had no jurisdiction to take cognizance of the offence alleged in the complaint filed based on such detection, arrest and seizure. Consequently, the court below could not have framed 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 in this case 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 entitled to be discharged in this case. -7- Crl. Appeal No.1509 of 2005 6. 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** kns/- //TRUE COPY// P.A. TO JUDGE