Mohandas s/o P.K. Rajan vs State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 29TH DAY OF JUNE 2020 / 8TH ASHADHA, 1942** ## **CRL.A.No.1117 OF 2005** **AGAINST THE JUDGMENT IN SC NO.340/2004 DATED 08-06-2005 OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-1,PALAKKAD** ## **APPELLANT/ACCUSED:** **MOHANDAS S/O P.K.RAJAN, RAJBHAVAN, MANAKKALKADU, MALAMPUZHA.** **BY ADV. SRI.K.P.BALAGOPAL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL No.1117 OF 2005 2 ## **JUDGMENT** ## **Dated this the 29[th] day of June, 2020** … The above appeal is filed by the accused in Sessions Case No. 340 of 2004 on the file of the Additional Sessions Judge, Fast Track Court-1, Palakkad. 2. The Sub Inspector of Police, Malampuzha charge sheeted the accused alleging offence under Section 55(a) of the Abkari Act. 3. The prosecution case is that on 3.11.2002 at 5 p.m., the accused was found in possession of 15 bottles (15 x 180ml) of Indian Made Foreign Liquor in an unnumbered shed in Manakkalkadu in Malampuzha II Village. 4. To substantiate the case, the prosecution examined PW1 to PW4. Exhibits P1 to P7 are the documents marked on the side of the prosecution. MO1 series are the material objects marked in this case. **==> picture [423 x 12] intentionally omitted <==** CRL.APPEAL No.1117 OF 2005 3 documents, the trial court found that, the accused committed the offence under Section 55(a) of the Abkari Act. He is sentenced to undergo Simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused is directed to undergo Simple imprisonment for a further period of three months. Aggrieved by the conviction and sentence, this Crl.Appeal is filed. 6. Heard the learned counsel for the appellant and the learned Public Prosecutor. 7. The learned Counsel for the appellant submitted that, the investigation in this case is conducted by PW4, the Sub Inspector of Police, Hemambika Nagar Police Station. He is not an authorized person as per the Abkari Act to conduct investigation in this case because the alleged search and seizure in this case was within the jurisdiction of Malampuzha Police Station. The learned Counsel also submitted that, even though the seizure of the alleged contraband article was on 3.11.2002, the same was produced before the court only on 8.11.2002. CRL.APPEAL No.1117 OF 2005 4 8. The learned Public Prosecutor submitted that, in the light of the oral and documentary evidence, in this case, the prosecution proved the case. He argued that the trial court convicted the accused based on the legal evidence adduced by the prosecution. The learned Public Prosecutor submitted that there is nothing to interfere with the conviction and sentence imposed by the trial court. 9. The point for consideration in this appeal is whether the accused committed the offence under Section 55(a) of the Abkari Act. 10. Admittedly, the search and seizure, in this case, was from a place within the jurisdiction of Malampuzha Police Station. PW4 is the Sub Inspector of Police of Hemambika Police Station. There is no evidence before this court to show that there is any notification authorizing PW4 to investigate this case. The learned Public Prosecutor produced an order No.1968/DR/E/02 dated 3.11.2002 of the Circle Inspector of Police, Town North, Palakkkad by which the Sub Inspector of Police, Hemambika Nagar Police CRL.APPEAL No.1117 OF 2005 5 Station is authorized to investigate Crime No.101 of 2002. Admittedly, this order is not produced before the trial court, and therefore, I am not in a position to accept the same. Moreover, even if this order is there, it is a settled position that, a Circle Inspector of Police has no jurisdiction to authorize a Sub Inspector to conduct investigation in an Abkari case outside the jurisdiction of his Police station. In this case, admittedly, PW4 is the Sub Inspector of Hemambika Nagar Police Station and he has no territorial jurisdiction over the Malampuzha Police Station. Therefore, he has no jurisdiction to investigate the case registered by the Malampuzha Police Station. This point is considered by this Court in **Narayanankutty v. State of Kerala** [2015(1) KHC 702]. The relevant paragraphs of the above decision are extracted hereunder: _“7. PW6 deposed that he had taken over the investigation in this case as directed by the Circle Inspector of Police, Hemambika Nagar, on 12.07.2003. A Circle Inspector of Police is competent under SRO No.321 of 1996 to conduct investigation of a case within his territorial_ CRL.APPEAL No.1117 OF 2005 6 _jurisdiction. He cannot delegate such power given to him under SRO No.321 of 1996 to a subordinate Police Officer because, such a power can be conferred only by a notification issued by the Government under Section 4 of the Abkari Act. The direction issued by the Circle Inspector of Police to PW6 for conducting investigation cannot be equated with a notification issued under Section 4 of the Abkari Act. Therefore, the authority granted by the Circle Inspector of Police cannot be a ground for exercising jurisdiction by a Sub Inspector of Police beyond his territorial jurisdiction._ _8. As the investigation was conducted by PW6, 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 accused 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.PC. Therefore, the conviction and sentence passed against the appellant are liable to be_ CRL.APPEAL No.1117 OF 2005 7 _set aside. The appellant is entitled to be discharged in this case.”_ In the light of the above judgment, the entire prosecution is vitiated in this case. 11. Moreover, the seizure of the contraband property from the accused was on 3.11.2002. The property was produced before court only on 8.11.2002. When PW4 was cross-examined regarding the delay in producing the property before the court, he deposed that, there is no reason for the delay. This point is also considered by this Court in **Sukumaran v. State** **of Kerala (2019(3) KLT 920), Ravi v. State Sub Inspector of Police, Meppadi (2018(5) KHC 352)** and **Vikraman v. State of Kerala (2018(1) KLT 822).** Relevant portion of the judgment in **Ravi's** case (supra) is extracted hereunder: _“8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution_ CRL.APPEAL No.1117 OF 2005 8 _showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt._ _9. In the instant case, there is a delay of four days in producing the contraband articles before the court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the court cannot act upon Ext.P6 copy of the forwarding note."_ Since, in this case, there is no explanation for not producing the contraband article before the court immediately after seizure, the accused is entitled the benefit of doubt on this ground also. 12. In the light of the above discussions, I think the accused is entitled the benefit of doubt. Hence, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 8.6.2005 in S.C No.340 of 2004 CRL.APPEAL No.1117 OF 2005 9 on the file of the Additional Sessions Judge, Fast Track Court-1, Palakkad, is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant, is cancelled. ## **pkk** - **Sd/ P.V.KUNHIKRISHNAN JUDGE**