NACHI @ MADHAVAN v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 21ST DAY OF MARCH 2016/1ST CHAITHRA, 1938 CRL.A.No. 676 of 2006 (F) -----------------------------AGAINST THE JUDGMENT IN SC 17/2002 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA DATED 27-02-2006 ------ APPELLANT/ACCUSED:: --------------------------- NACHI @ MADHAVAN, S/O. POLAYAN, AGED 42, CHEMBANKOLLI COLONY, APPAPPARA, THIRUNELLI AMSOM, WYNAD DISTRICT. BY ADVS. SRI.V.RAJENDRAN SRI.P.SAMSUDIN RESPONDENT/COMPLAINANT:: ---------------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, THIRUNELLI THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MS.LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.676 of 2006 -----------------------------------------------Dated this the 21[st] day of March, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court (Ad hoc)-II, Kalpetta, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo simple imprisonment for one year and to pay a fine of 1 lakh and, in default of payment of fine, to undergo₹ simple imprisonment for three months. 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: PW1, the Sub Inspector of Police, Thirunelly Police Station, and his party were on patrol at about 6.30 p.m. on 24-08-1999. When they reached Kalkunikkunnu, the Crl. Appeal No.676 of 2006 -2- appellant was seen going towards Appapara side carrying a white plastic cover. Seeing the police party, the appellant attempted to flee away. But, the police party followed him and stopped him there. On examining the plastic cover carried by the appellant, 45 covers each containing 100 ml. of arrack manufactured in Karnataka were found in it. Since the appellant had committed an offence under the Abkari Act, he was arrested by PW1 then and there preparing Ext.P3 Arrest Memo and an Inspection Memo. PW1 had seized the arrack contained in the plastic covers under Ext.P1 Seizure Mahazar in the presence of witnesses. He had taken four packets as samples and two packets each were opened and poured into two separate 375 ml. bottles and sealed those bottles. Thereafter, PW1 and his party reached Thirunelly Police Station with the appellant, properties and the records. PW1 registered Crime No.93 of 1999 of that Police Station in respect of the occurrence. Ext.P2 is the F.I.R. thus drawn by PW1. He had produced the appellant, properties and the records before the Judicial First Class Crl. Appeal No.676 of 2006 -3- Magistrate's Court-II, Mananthavady. Ext.P4 is a copy of the Forwarding Note. Ext.P5 is the Certificate of Chemical Analysis. Ext.P6 is the List of Property. The investigation of the case was conducted by PW6, the Sub Inspector of Police, Thalappuzha Police Station. He had gone to the place of occurrence and prepared Ext.P7 Scene Mahazar. He had questioned the witnesses and recorded their statements. Later, PW1 submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Kalpetta, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-II, Kalpetta. 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 6 and marked Exts.P1 to P7 and M.Os.1 to 3 on their side. The appellant was examined under Section 313 of Cr.P.C. He denied the incriminating circumstances shown against him. The defence has not adduced any evidence. Crl. Appeal No.676 of 2006 -4- 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 by the court below against him. This Court need not go into all those contentions for disposing of this appeal. The offence was detected by PW1, the Sub Inspector of Police, Thirunelly. He was a competent officer for doing the same. But, the investigation of the case was conducted by PW6, the Sub Inspector of Police, Thalappuzha Police Station. The occurrence in this case had taken place within the jurisdiction of PW1 and not within the jurisdiction of PW6. Learned counsel for the appellant submits that since the occurrence had taken place within the jurisdiction of PW1 and not within the jurisdiction of PW6, PW6 had no jurisdiction to conduct the investigation of the case. The investigation of a case of this nature can be conducted by an Crl. Appeal No.676 of 2006 -5- 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, 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, Crl. Appeal No.676 of 2006 -6- 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 PW6. He was entitled to exercise jurisdiction only within the territorial limits of Thalappuzha Police Station. The Sub Inspector of Police, Thalappuzha Police Station, does not have jurisdiction as an Abkari Officer within the territorial limits of Thirunelly Police Station as the occurrence took place within the limits of Thirunelly 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 Crl. Appeal No.676 of 2006 -7- 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 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 jurisdiction only within the territorial limits of his Police Station. Therefore, PW6, the Sub Inspector of Police, Crl. Appeal No.676 of 2006 -8- Thalappuzha Police Station, has exceeded the limits of his jurisdiction by investigating the case which was within the territorial limits of Thirunelly Police Station. 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 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 accused 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. The appellant is 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 Crl. Appeal No.676 of 2006 -9- 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