Ramakrishnan v. State of Kerala (CRL.A. Nos. 1755/2004 & 1792/2004)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 14TH DAY OF JANUARY 2016/24TH POUSHA, 1937** ## **CRL.A.No. 1755 of 2004 ( )** **--------------------------AGAINST THE JUDGMENT IN SC 611/2000 of ADDL.SESSIONS COURT (ADHOC)II, THALASSERY DATED 07-10-2004** **(CP 110/2000 of JUDICIAL FIRST CLASS MAGISTRATE, PAYYANNUR PAYYANNUR)** **APPELLANT(S)/ACCUSED NO.2:** **---------------------------** **RAMAKRISHNAN, MALAYIL THAZHE, S/O. UNNIPRAVAN, AGED 45, AUTO DRIVER KOTTAKUNNUCHIMMINI VEETTIL, CHIRAKAL AMSOM KANHIRATHARA.** **BY ADV. SRI.V.N.RAMESAN NAMBISAN** ## **RESPONDENT(S)/RESPONDENTS:** **----------------------------** **STATE OF KERALA,REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-01-2016, ALONG WITH CRL.APPEAL NO. 1792/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal Nos.1755/2004 & 1792/2004 ---------------------------------------------Dated this the 14[th] day of January, 2016 ## **JUDGMENT** These appeals are directed against the conviction and sentence in S.C.No.611/2000 of the Additional Sessions Judge, Adhoc-II, Thalassery u/s.55(a) of the Abkari Act. The charge against the accused was that on 4.10.1999 at 11.30 a.m., they were found transporting three cases of Indian Made Foreign Liquor containing 12 bottles of 750 ml each in an autorickshaw bearing No.KL-13/3718 driven by the 2[nd] accused. They were arrested and contraband articles were seized from the place of occurrence. After completing investigation, the final report was filed before Judicial First Class Magistrate, Payyannur from there the case was Crl. Appeal No.1755/2004 & Con.case 2 committed to Sessions Court, Thalassery for trial. 2. During trial, prosecution examined PW1 to PW3 and documentary evidence Exts.P1 to P6 were marked. Mo1 and Mo2 were marked as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They were heard u/s.232 Cr.P.C. They did not adduce any defence evidence. The trial Court convicted the accused and sentenced to undergo rigorous imprisonment for two years each and fine of ₹1 lakh each, in default simple imprisonment for three months each. Being aggrieved by that, they preferred these appeals. 3. The learned counsel appearing for the appellants contended that the offence was detected by the Sub Inspector of Police, Payangadi, but the investigation was conducted by the Sub Inspector of Police, Thaliparamba. Crl. Appeal No.1755/2004 & Con.case 3 Even though final report was filed by the Sub Inspector of Police, Payangadi, the materials collected by the investigating officer, who is the Sub Inspector of Police, is and cannot use the Thaliparamba illegal against appellants. 4. Heard the learned Public Prosecutor. 5. This Court in **Saji @ Kochumon** v. **State of Kerala** ## [2010 (3) KLT 471] held as follows: 5.Sub-section (2) of S.50 of Kerala Abkari Act provides that as soon as investigation into the offence under the Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-s.(2) of S. 173 of Code of Criminal Procedure. Abkari Officer is defined under S.3(2), means Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under S.4 or 5. S.4 provide that Government may appoint an officer to control the administration of abkari department by notification in the gazette. Under clause (d) of S.4 Government may by notification in the gazette appoint officers to perform the acts and duties mentioned in Ss.40 to 53 (inclusive) of the Act. S.5 provides that Government may from time to time make rules prescribing the powers and duties under the Act to be exercised and performed by the Abkari Officers of the several classes and regulating the Crl. Appeal No.1755/2004 & Con.case 4 delegation by the Government or by Commissioner of Excise, of any powers conferred by the Act or exercise in respect of Abkari revenue in any law for the time being in force. S.R.0..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. 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. 6. The final report was submitted before the court by PW7, in his capacity as Sub Inspector, Veeyapuram. The report does not disclose on what power or authority he submitted the final report when he is not the Abkari Officer competent to exercise the power Crl. Appeal No.1755/2004 & Con.case 5 under S.50 of the Abkari Act within the territorial jurisdiction of Edathwa police station. The final report does not disclose that he was authorised by the Government to exercise the power under S.50 of the Abkari Act in respect of jurisdiction of Edathwa police station. Though from the witness box PW7 claimed that he was authorised by the Circle Inspector of police as per order in 83/1998 to file the report, no such order was produced either along with the final report or even at the time of evidence. In spite of the fact that PW7 was cross examined with regard to the non production of the order as the final report does not disclose that he has been authorised by the Circle Inspector of Police much less by the order in 83/1998 to either verify or investigate or submit a report, it was not produced. If that be the case, it can only be found that PW7 who laid charge is not the competent Abkari Officer authorised to file a final report as provided under S.50 of Abkari Act in the case. Question is what is the consequence of the cognizance taken on that final report submitted by an officer who is not the Abkari Officer authorised to file final report and the subsequent trial. 7. The Division Bench of this court in Varkey v. State of Kerala (1993 (1) KLT 72) following the earlier Division Bench decision in Prabbhakaran v. Excise Circle Inspector (1992 (2) KLT 860) held that when the Excise Inspector who filed the complaint has no authority to file the complaint, court has no jurisdiction to take cognizance or frame charge or try the accused and "the trial which followed the said charge must be treated as non est, because it was done without jurisdiction. The Full Bench of this court in Abdul Rehman v. State of Kerala (1995 (1) KLT 234 (F.B.)) upheld the decision. A later Division Bench in Subash v. State of Kerala (2008 (2) KLT 1047) held that when the Magistrate has no jurisdiction to take cognizance of the case on a report filed by a person Crl. Appeal No.1755/2004 & Con.case 6 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. It is followed by a learned Single Judge in Subrahmaniyan v. State of Kerala (2010 (2) KLT 470). In view of the legal position, it can only be found that cognizance taken on the final report submitted by PW7 the Sub Inspector of Police, Veeyapuram who has no authority to file a final report in the case and the cognizance taken, charge framed and the trial and consequent conviction and sentence awarded against the petitioner are illegal and non est. Hence it can only be set aside. This Court in **Narayanankutty** v. **State of Kerala** [2015(1) KHC 702] followed the above legal principle. 4. Prosecution examined PW1 as the occurrence witness. The evidence of PW1 shows that on 4.10.1999 at 11 a.m., he arrived at Koyi Bazar, at that time an autorickshaw bearing No.KL-13/3718 came there and he intercepted it, inspected the vehicle and seized the contraband articles from the autorickshaw. The 2[nd] Crl. Appeal No.1755/2004 & Con.case 7 accused was the driver of the autorickshaw and the 1[st] accused was a passenger. During inspection, he detected three cases of Indian Made Foreign Liquor each containing 12 bottles of 750ml each and seized those articles, after preparing Ext.P1 seizure mahazar. The independent witness present there attested the seizure mahazar. Ext.P2 is the arrest memo, reaching at the Police Station, he registered a crime. Ext.P3 is the FIR. Ext.P4 is the forwarding note. The seized bottles were marked as MO1 series. Even though PW1 was cross examined , he categorically stated about the method of seizure and the nature of arrest. PW2 supported the evidence of PW1. He identified the accused and signature in Ext.P1. Analysing the evidence of PW1 and PW2, it is true that the articles were seized by PW1 as stated. 5. The evidence of PW3 shows that while he was Crl. Appeal No.1755/2004 & Con.case 8 working as Sub Inspector of Police, Taliparamba on 5.10.99 at 11 a.m. as per the direction of the C.I. of Police, Taliparamba he arrived at the place of occurrence and prepared Ext.P5 scene mahazar and he recorded the statement of the witnesses. The seized articles were sent over to the chemical examiner's lab and Ext.P6 is chemical analysis report. After completing investigation, he sent the records and charge sheet to the Sub Inspector of Police, Payangadi. The evidence of PW3 shows that he is not an empowered officer as directed in the Abkari Act. As per the notification No.321/1996, the incident was occurred outside his police station limit. Section 3(2) of the Abkari Act 'Abkari Officer' means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Section 4 or 5. According to Section 4 of the Abkari Act, the Government may, by Crl. Appeal No.1755/2004 & Con.case 9 notification in the Gazette, appoint officers of the Government to act as per the Abkari Act to do certain act delegated to them within their jurisdiction. The Government may also from time to time make rules. When the Sub Inspector of Police, Taliparamba, without conferring any power as per Section 4 or 5 of the Act, conducted investigation and forwarded a final report, it is to be treated as non est. The Magistrate has also no jurisdiction to take cognizance of the offence on a police report filed by a non-empowered officer u/s.50 of the Abkari Act. Therefore, the cognizance taken by the Court is also illegal. The Government have the power to notify officers under Section 4 of the Abkari Act. Therefore, the cognizance taken on the basis of final report submitted by the Sub Inspector of Police, Payangadi and the charge framed u/s.55(a) of the Abkari Crl. Appeal No.1755/2004 & Con.case 10 Act, the trial and consequent conviction and sentence against the appellants are illegal. In the result, the conviction and sentence passed by the additional Sessions Judge (Adhoc)-II u/s.55(a) of the Abkari Act are set aside and the appellants are acquitted and set at liberty. Crl.Appeals are allowed. **P.D. RAJAN, JUDGE.** acd Crl. Appeal No.1755/2004 & Con.case 11