Narayanankutty v. State of Kerala

## **C.R.** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 18TH DAY OF JULY 2014/27TH ASHADHA, 1936 CRL.A.No. 962 of 2005 -------------------------- AGAINST THE JUDGMENT IN SC 218/2004 of ADDITIONAL SESSIONS COURT (ADHOC)I, PALAKKAD DATED 12-05-2005 ## APPELLANT/ACCUSED: NARAYANANKUTTY, S/O.CHINNAN, PARAKKOTTIL HOUSE, THRIPPALAMUNDA, KONGAD II VILLAGE. BY ADVS.SRI.P.VIJAYA BHANU SRI.PRASUN.S RESPONDENT/COMPLAINANT: STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R1 BY PUBLIC PROSECUTOR SRI. C.K. JAYAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.R.** ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A.No. 962 of 2005 = = = = = = = = = = = = = = = = = = = Dated this the 18[th] day of July, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court(Adhoc)-I, Palakkad, for the offence under Section 8 of the Abkari Act. He was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for six months. The appellant challenges the conviction and sentence so passed by the court below 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: On getting information that the appellant was selling arrack in CRL.A. 962/2005 2 the premises of his house, PW1, the Sub Inspector of Police, Kongad Police Station, and his party left for that place and reached that place, viz., Thripplammunde in Kongad-II Village, at 1.30 p.m. on 12-7-2003. Seeing the police party, the appellant, who was standing in the courtyard on the southern side of his house carrying a 5 litre jerrycan in his one hand and a glass in the other hand, attempted to flee away. But, he was stopped there by PW1. On examining, it was found that the jerrycan contained 2 litres of arrack. Therefore, the appellant was arrested by PW1 then and there. Ext.P2 is the Arrest Memo prepared by PW1. On examining the premises, a 10 litre jerrycan containing full of arrack was found in the shrubs on the northern side of that house. PW1 had seized both the jerrycans containing arrack and the glass under Ext.P1 Seizure Mahazar. He had also taken three samples of 180 ml. each from each of the two jerrycans and sealed and seized them. Thereafter, PW1 reached Kongad Police Station with the appellant and the CRL.A. 962/2005 3 contraband items at 3 p.m. and registered Crime No.165 of 2003 of that Police Station in respect of the occurrence. Ext.P3 is the F.I.R. thus drawn by PW1. He had produced the properties before the court on 18-7-2003. The investigation of the case was taken over by PW6, the Sub Inspector of Police, Hemambika Nagar Police Station, in between 2 p.m. and 2.30 p.m. on 12-7-2003 itself. He had prepared Ext.P4 Scene Mahazar. He had questioned the witnesses and recorded their statements. He had produced the Forwarding Note for subjecting the samples to chemical examination. Ext.P6 is a copy of that Forwarding Note. Ext.P7 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. After completing the investigation, PW6 submitted the Final Report before the Judicial First Class Magistrate's Court-II, Palakkad. 4. The learned Magistrate, after complying with the legal requirements, committed the case to the Court of Session, Palakkad, and, from there, it was made over to the CRL.A. 962/2005 4 Additional Assistant Sessions Court, Palakkad. Later, the case was withdrawn and made over to the Additional Sessions Court (Adhoc)-I, Palakkad. The court below framed a charge against the appellant alleging the offence under Section 8 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 MO.1 series on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied the incriminating circumstances shown 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 8 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. This Court need not go into all those contentions for CRL.A. 962/2005 5 disposing of this appeal. The investigation of this case was conducted by PW6, the Sub Inspector of Police, Hemambika Nagar Police Station. The occurrence in this case had not taken place within the jurisdiction of PW6. But it had taken place within the jurisdiction of PW1, the Sub Inspector of Police, Kongad Police Station. 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 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 CRL.A. 962/2005 6 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 purpose 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 within their respective jurisdiction. Here, the investigation has been conducted by PW6. He was entitled to exercise CRL.A. 962/2005 7 jurisdiction only within the territorial limits of Hemambika Nagar Police Station. The Sub Inspector of Police, Hemambika Nagar Police Station, did not have any jurisdiction as an Abkari Officer within the territorial limits of Kongad Police Station, as the occurrence in this case took place within the limits of that Police Station. 6. A learned single Judge of this Court in **Saji @ Kochumon v. State of Kerala(2010(3)KLT 471)** had occasion to consider 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. CRL.A. 962/2005 8 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 CRL.A. 962/2005 9 station. Therefore, PW6, the Sub Inspector of Police, Hemambika Nagar Police Station, had exceeded the limits of his jurisdiction by investigating the case on hand which was within the territorial limits of Kongad Police Station. 7. PW6 deposed that he had taken over the investigation in this case as directed by the Circle Inspector of Police, Hemambika Nagar, on 12-7-2003. A Circle Inspector of Police is competent under S.R.O.No.321 of 1996 to conduct investigation of a case within his territorial jurisdiction. He cannot delegate such power given to him under S.R.O.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 CRL.A. 962/2005 10 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.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 CRL.A. 962/2005 11 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. TO JUDGE CRL.A. 962/2005 12