P. Jayanda v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **WEDNESDAY, THE 27TH DAY OF JANUARY 2016/7TH MAGHA, 1937** ## **CRL.A.No. 580 of 2005 ( )** **-------------------------AGAINST THE ORDER/JUDGMENT IN SC 408/2004 of ADDL.SESSIONS COURT (ADHOC)-II, KASARGODE DATED 14-03-2004** ## **APPELLANT(S)/ACCUSED:** **----------------------------------------** **P.JAYANDA, S/O.KRISHNA BELICHAPPAD, MUTHAPPA NIVAS KANNADIPPARA ROAD, PACHAMBALAM, ICHILAMKODE VILLAGE KASARAGOD DISTRICT.** ## **BY ADV. SRI.T.G.RAJENDRAN** **RESPONDENT(S)/COMPLAINANT:** **----------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **LSN** ## **P.D.RAJAN, J. --------------------------------------------Crl.Appeal. No.580 of 2005 ----------------------------------------------** Dated this the 27[th] day of January, 2016 ## **JUDGMENT** This appeal is preferred against the conviction and sentence in S.C 408/04 of the Additional Sessions Judge (Adhoc) II, Kasargod under Section 55(a) of the Abkari Act. 2. The charge against the appellant is that on 10.03.2002 at 19.45 hours, the Sub Inspector of Police, Kumbala seized 9 bottles of foreign liquor each contain 750 ml at Kubanoor in Ichilamcodu Village. He was arrested and contraband articles were produced before Kumbala Police Station and registered a crime. After completing the investigation, he laid charge before the Judicial First Class Magistrate Court, Kasargod. From there it was committed to the Sessions Court. During trial, prosecution examined PWs 1 to 3 and marked Exts. P1 to P7 as documentary evidence. MO 1 and 2 series were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the appellant while questioning him. He did not adduce **2** ## **Crl.Appeal. No.580 of 2005** any defence evidence. The learned Additional Sessions Judge (Adhoc) II, Kasargod convicted the accused and sentenced to rigorous imprisonment for one year and fine of Rs.1,00,000/- and in default rigorous imprisonment for two months. Being aggrieved by that he preferred this appeal. 3. The learned counsel appearing for the appellant contended that the investigation was conducted by the Sub Inspector of Police, Manjeshwar which is outside the jurisdiction of Kumbala Police Station and he has no right to conduct the investigation as per Section 4 (d) of the Abkari Act. The Circle Inspector of Police, Manjeshwar is competent to conduct an investigation in an Abkari case within the jurisdiction of Kumbala Police. Any investigation conducted by a non-empowered Officer cannot be used for a conviction under the Abkari Act. Therefore, the cognizance taken and charge framed under trial against the appellant is illegal. 4. The learned Public Prosecutor admitted that no notification was issued under Section 4d of the Abkari **Crl.Appeal. No.580 of 2005** **3** Act, empowering the Sub Inspector of Police, Manjeshwar to conduct an investigation outside his jurisdiction. ## 5. This Court in **Saji @ Kochumon v. State of Kerala [2010(3)KLT 471]** held as follows: "When the Magistrate has no jurisdiction to take cognizance of the case on a report filed by a person other than an Abkari Officer as defined under S.50 of the Abkari Act, there is total lack of jurisdiction for taking cognizance of an offence if cognizance is taken on a final report not submitted by an Abkari Officer and it is not an irregularity covered by Chapter XXXV of Code of Criminal Procedure but a total illegality and therefore, the cognizance taken, trial conducted and the conviction and sentence are all illegal". (para 7) In this context, I have perused the evidence of PW1 who is Detecting Officer in this case. The evidence of PW1 shows that on 10.03.2002, he was Sub Inspector of Police, Kumbala Police Station, at 19.45 hours, he reached at Kannadippara road junction on the Banthiyodu-Permude road. The appellant was found carrying a polythene bag. On seeing the Police party, he became frightened, PW1 intercepted him and questioned. **Crl.Appeal. No.580 of 2005** **4** During inspection of the bag, he detected 9 bottles of Original Choice Deluxe Whisky each containing 750ml. Appellant was arrested after preparing Ext.P1 arrest memo and the contraband articles were seized as per Ext.P2 seizure mahazar. He took two bottles as sample which contained the signature of the accused and witnesses and affixed a label. Reaching at the Police Station he registered a crime. Ext.P3 is the F.I.R and further investigation was conducted by Sub Inspector of Police, Manjeshwar. He produced the seized articles on 30.03.2002 and Ext.P4 is the property list. Those article were produced before court, from there, it was forwarded to chemical examiners lab, Ext.P5 is the forwarding note and Ext.P6 is the chemical examination result. As per Ext.P6, the sample contained 42.08% of ethyl alcohol. In cross-examination he admitted that in the near by vicinity no houses and residences were found in that locality. Analysing the evidence it is found that the incident was occurred within his jurisdiction and the investigation was conducted by the Sub Inspector of **Crl.Appeal. No.580 of 2005** **5** Police, Manjeshwar. 6. PW2 deposed that on 13.03.2002 while he was working as Sub Inspector of Police, Manjeshwar he conducted the investigation in this case as per the direction of the Circle Inspector of Police, Kumbala. As per the direction, he arrived at the place of occurrence and prepared Ext.P7 mahazar and questioned the witnesses in this case. Thereafter, he entrusted the records to the Station House Officer, Kumbala Police Station. The defence counsel questioned the authority of PW2 that he has no right to enter the jurisdiction of Kumbala Police Station for an investigation. But he stated that he arrived at the place of occurrence and prepared Ext.P7 as per the direction of Circle Inspector of Police. PW3 admitted his signature in Ext.P7 scene mahazar. He deposed that on 11.03.2002 at 12 O' clock, he signed Ext.P1. 7. A perusal of the above evidence of PW 1 and 2, it is clear that there is violation of the fundamental rules with regard to the investigation in an Abkari case. In **Crl.Appeal. No.580 of 2005** **6** ## **Saji @ Kochumon's** case (supra) it was held as follows: "S.R.O.321/1996 was issued in exercise of the powers conferred by S.4 of the Act by the State Government. 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 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". **(para. 5)** Analysing the investigation conducted by PW2, the Sub Inspector of Police, Manjeshwar, it shows that he has no authority to investigate a case and file report as directed by the Circle Inspector of Police, Kumbala. Therefore, the charge framed under the trial and conviction against the appellant are illegal and nonest. **7** ## **Crl.Appeal. No.580 of 2005** In the result, conviction and sentence passed by the Additional Sessions Court, Kasargod in S.C 408/04 is set aside and the appellant is set at liberty. Appeal is allowed. Sd/- **P.D.RAJAN, Judge** True Copy P.A to Judge lsn