RadhaKrishnan alias Sasi v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 1ST DAY OF MARCH 2016/11TH PHALGUNA, 1937 CRL.A.No. 1076 of 2006 --------------------------- AGAINST THE JUDGMENT IN SC 230/2004 of ADL.SESSIONS COURT,THODUPUZHA APPELLANT/ACCUSED:: ------------------------------------------ RADHAKRISHNAN @ SASI, S/O. GOVINDAN NAIR, PARACKAL HOUSE SIVAN COLONY BHAGAM, VANDANMEDU VILLAGE. BY ADV. SRI.P.CHANDY JOSEPH RESPONDENT/COMPLAINANT:: ------------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT. LISHA. M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-032016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 1076 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 1[st] day of March, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court, Thodupuzha, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo simple imprisonment for six months and to pay a fine of Rupees one lakh and, in default of payment of fine, to undergo simple imprisonment for six 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. CRA 1076/2006 2 3. The prosecution case is briefly stated as follows: PW5, the Sub Inspector of Police, Vandanmedu Police Station, and his party were on patrol at about 1.30 p.m. on 5.6.2001. When they reached Vandanmedu, PW5 received reliable information that the appellant was keeping unauthorised liquor in his house for the purpose of sale. Therefore, after sending Ext.P6 Search Memo to the court, PW5 and his party searched the house of the appellant. During search, three 750 ml. bottles of MAJESTIC XXX RUM were found in a big shopper beneath a cot in the southern bed room of that house. Since the appellant had committed an offence under the Abkari Act, he was arrested by PW5 then and there preparing Ext.P7 Arrest Memo. PW5 sealed those bottles and seized them under Ext.P2 Search List in the presence of witnesses. Thereafter, PW5 and his party reached Vandanmedu Police Station with the appellant, properties and the records. PW5 registered Crime No.100 of 2001 in respect of the occurrence. Ext.P8 is the FIR thus CRA 1076/2006 3 drawn by PW5. The appellant, properties and the records were produced before the Judicial First Class Magistrate's Court, Nedumkandam. Ext.P9 is the List of Property and Ext.P10 is a copy of the Forwarding Note. Ext.P11 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. The investigation of the case was conducted by PW6, the Sub Inspector of Police, Kattappana Police Station. He had questioned the witnesses and recorded their statements. CW10 had completed the investigation and 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, Thodupuzha, and, from there, it was made over to the Assistant Sessions Court, Kattappana. Later, the case was recalled and made over to the Additional Sessions Court, Thodupuzha. The court below framed a charge against the appellant alleging the offence under Section 55 CRA 1076/2006 4 (a) and (h) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 6 and marked Exts.P1 to P11 and MO.1 and MO2 series on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence has 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. He was found not guilty of the offence under Section 55(h) of the Abkari Act and he was acquitted of that offence. 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 disposing of this appeal. The offence was detected by PW5, the Sub Inspector of Police, Vandanmedu Police Station. CRA 1076/2006 5 The occurrence has taken place within the jurisdiction of PW5. The investigation of the case was conducted by PW6, the Sub Inspector of Police, Kattappana Police Station. The offence has not taken place within his jurisdiction. 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.321/96. 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 CRA 1076/2006 6 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, 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 was CRA 1076/2006 7 conducted by PW6. He was entitled to exercise jurisdiction only within the territorial limits of Kattappana Police Station. The Sub Inspector of Police, Kattappana Police Station, does not have jurisdiction as an Abkari Officer within the territorial limits of Vandanmedu Police Station. The occurrence in this case took place within the limits of Vandanmedu 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 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 CRA 1076/2006 8 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 CRA 1076/2006 9 station. Therefore, PW6, the Sub Inspector of Police, Kattappana Police Station, has exceeded the limits of his jurisdiction by investigating the case on hand which was within the territorial limits of Vandanmedu 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 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. CRA 1076/2006 10 7. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is discharged and set at liberty. The bail bond executed by him shall stand cancelled. The amount, if any, deposited by the appellant as directed by this Court shall be returned to him. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. (Hr.Gr.)To Judge CRA 1076/2006 11