Rathnaswamy v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE 24TH DAY OF JANUARY 2014/4TH MAGHA, 1935 CRL.A.No. 1271 of 2003 ( ) ------------------------------------ AGAINST THE JUDGMENT IN SC 102/2003 of ADDITIONAL SESSIONS COURT (FAST TRACK COURT NO.I), PALAKKAD DATED 03-07-2003 APPELLANT/ACCUSED : -------------------------------- RATHNASWAMY, S/O. RAMASWAMY, MEENAKSHIPURAM, CHITTUR, PALAKKAD. BY ADV. SRI.RENJITH THAMPAN (SR.) ## RESPONDENT/STATE/COMPLAINANT : ---------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, CHITTUR POLICE STATION, PALAKKAD. BY PUBLIC PROSECUTOR SMT. T.Y. LALIZA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/27/01 ## V.K.MOHANAN, J. ---------------------------------------Crl.A.No. 1271 of 2003 ---------------------------------------Dated this the 24[th] day of January, 2014 ## J U D G M E N T The above appeal is directed against judgment dated 03.07.2003 in S.C.No.102 of 2003 of the Court of Additional Sessions Judge (Fast Track Court No.1) Palakkad at the instance of the sole accused in the above Sessions Case, who is the first accused in Crime No. 149 of 1999 of Chittur Police Station, as he is aggrieved by the conviction and sentence imposed on him for the offenece under Section 55(a) of the Kerala Abkari Act. 2. The prosecution case is that the accused along with the original 2[nd] accused was found possessing and transporting 120 bottles of whisky and 24 bottles of brandy each having capacity of 180 ML in a TVS-50 Mopped through Meenakshipuram - Govindapuram public road at a place Moolathara at about 4.15 p.m. on 13.06.1999, which was detected by PW5, the Sub Inspector of Police attached to Chittur Police Station. Thus according to the prosecution, the accused 2 in numbers have committed the offences punishable under Section 55(a) and 8(2) Crl.A.1271/2003 2 of the Kerala Abkari Act. 3. On completing the investigation, a report was filed before the Judicial First Class Magistrate's Court, Chittur and accordingly the case was taken on file as C.P.No.25 of 1999 and the learned Magistrate by his order dated 30.01.2001 in the above proceedings committed the case to the Sessions Court where S.C.No.167 of 2001 was instituted and later the case was transferred to the present trial court for disposal. Thus while the above case was pending before the trial court, the present appellant who is the first accused absconded and therefore the case against him was split up and refiled as S.C.No.102 of 2003 whereas the case against 2[nd] accused was proceeded and finally he was acquitted. Subsequently, the present appellant, the 1[st] accused is arrested and thus while he was continuing in the custody the trial against him proceeded. Thus after hearing the prosecution as well as the defence, a formal charge was framed against the appellant who is the sole accused in the above sessions case for the offences punishable under Sections 55(a) and 8(2) of the Kerala Abkari Act. When the said charge read Crl.A.1271/2003 3 over and explained to the accused, he denied the same and pleaded not guilty. Resultantly, the trial was proceeded further, during which PWs 1 to 6 were examined and Exhibits P1 to P5 documents were produced and marked. MOs 1 and 2 were identified as Material Objects. The trial court finally found that the prosecution has proved beyond doubt that the accused/ appellant transported huge quantity of Indian Made Foreign Liquor unauthorisedly. Consequently he is convicted for the offence under Section 55(a) of the Kerala Abkari Act and found not guilty of the offence under Section 8(2) of the Kerala Abkari Act. On such a conviction, the appellant/accused is sentenced to undergo rigorous imprisonment for three years and to pay a fine of `1,00,000/- and in default of payment of fine, he is directed to undergo a further period of simple imprisonment for six months. Set off is allowed under Section 428 of the Code of Criminal Procedure. It is the above finding to the extent against the appellant and the conviction and sentence imposed on him challenged in this appeal. 4. Heard Sri. Ranjith Thampan, the learned Senior Counsel Crl.A.1271/2003 4 for the appellant and Smt. Laliza, the learned Public Prosecutor for the State. 5. Out of the six witnesses examined, except PW5 and 6 are independent witnesses and while PW4 and PW10 turned hostile towards the prosecution, PWs 1, 2 and 3, who are respectively attestors to Exhibit P1 Seizure Mahazar and Exhibit P2 Scene Mahazar fully supported the prosecution case. PW4 was cited and examined to show that he was the previous owner of the Mopped bearing Registration No.T.N.41/5213 TVS-50 Mopped and sold to the present appellant, but he turned hostile to the prosecution. PW5 is the then Sub Inspector of Police, Chittur Police Station, who detected the crime and during the examination of PW5, he had deposed the facts which led to the seizure of the contraband article from the possession of the accused and their arrest etc. and during his examination, he identified Exhibit P3 First Information Report, Exhibit P4 Forwarding Note prepared by him and Exhibit P5 Chemical Analysis Report obtained in this case. PW6 is the then Assistant Sub Inspector of Police who undertook the investigation and finally laid the charge. Crl.A.1271/2003 5 6. During the hearing of above appeal, the learned counsel for the appellant, among other grounds urged, it is specifically contended that no conviction can be possible as against the appellant/accused since the entire prosecution is void ab inito, particularly when the court took cognizance based upon a report preferred by an incompetent Police Officer. The learned Public Prosecutor, who appearing for the State has no much dispute about the above legal position and as such she has not advanced any counter argument. 7. After having considered the submissions made by the counsel for the appellant and the learned Pubic Prosecutor and the evidence and materials on record, it can be seen that after the detection of the crime by PW5 and the seizure of the contraband article and the arrest of the accused, the further investigation is undertaken by PW6, who was then working as Assistant Sub Inspector of Police, Chittur Police Station, who later laid the charge based upon which cognizance was taken and instituted the Sessions Case against the appellant/accused. 8. A Division Bench of this Court in the decision in Subash v. Crl.A.1271/2003 6 ## State of Kerala reported in [2008 (2) KLT 1047] has held: “A Magistrate cannot take cognizance of an offence under the Act on the basis of a report filed by Assistant Sub Inspector of Police, who is not an Abkari Officer as defined under the Act.” ## According to the Division Bench, “The illegality or irregularity in the investigation is different from lack of power to initiate prosecution.” According to me, the dictum laid down by the Division Bench in the above decision is squarely applicable in the present case since the investigation is conducted by an incompetent officer and he himself filed the Final Report, upon which no court can take cognizance since he is not an authorised officer in view of Section 50 of the Kerala Abkari Act to file the report. In view of the said fact, the Sessions Court or the Magistrate’s Court has no jurisdiction to take cognizance of the offence raised in the report and the court below ought not to have framed charge against the accused and the charge framed by the court below against the appellant is without jurisdiction. So the net result is that the trial Crl.A.1271/2003 7 which followed on the same charge, must be treated as nonest because it is done without jurisdiction. Consequently, as the trial was held without jurisdiction, it cannot end either in conviction or in acquittal. The Court below ought to have discharged the accused under Section 227 of the Cr.P.C. Accordingly this Court cannot approve the conviction recorded by the trial court. In the result, this appeal is disposed of setting aside the judgment of the trial court and the appellant/accused is discharged of all charges levelled against him under Section 227 of the Code of Criminal Procedure as the trial is vitiated and treated as nonest. If the appellant has already deposited any amount in the trial court in terms of the order dated 31.07.2003 in Crl.M.A.No.7778 of 2003, the same shall be released to him forthwith in case an application is moved in this behalf. ## Sd/V.K.MOHANAN, JUDGE. // True Copy // P.A. To Judge DSV/24/01 # Crl.A.1271/2003 8