Sakkariya 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. 288 of 2006 (F) -----------------------------AGAINST THE JUDGMENT IN SC 546/2004 of ASST. SESSIONS COURT, VADAKARA DATED 12-01-2005 ------ APPELLANT/ACCUSED: ------------------------- SAKKARIYA, S/O KANNAPPA RAWTHER, MUNDI VEETTIL, PUTHUNAGARAM DESOM, KODUVAYOOR VILLAGE, CHITTOOR TALUK, PALAKKAD DISTRICT. BY ADVS. SMT.V.P.SEEMANDINI (SR.) SRI.M.R.ANISON ## RESPONDENT/COMPLAINANT & STATE: ------------------------------------------- 1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. THE EXCISE INSPECTOR, EXCISE RANGE, VADAKARA, KOZHIKODE DISTRICT. BY ADV. PUBLIC PROSECUTOR MS.LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.288 of 2006 -----------------------------------------------Dated this the 1[st] day of March, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Assistant Sessions Court, Vadakara, for the offence under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of 1 lakh and, in default of₹ payment of fine, to undergo imprisonment for six months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Learned counsel for the appellant submitted that the appellant expired after filing this appeal. The report of the Excise Inspector concerned and the copy of the Death Certificate produced along with the memo of the learned Public Prosecutor confirmed the death of the appellant on 20-08-2013. The near relatives of the appellant did not file any application for leave to continue the appeal. Since the Crl. Appeal No.288 of 2006 -2- sentence awarded by the court below is a composite one of imprisonment and fine, this Court heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondents and also carefully perused the records of the case. 3. The prosecution case is briefly stated as follows: PW1, the Assistant Excise Inspector, Excise Range Office, Chelannur, and his party were checking vehicles at Azhiyoor at about 11.30 a.m. on 04-06-2002 as part of Azhiyoor Check Post duty. While so, the bus bearing Reg. No.KL-10/B 4050 came from Thalassery side to Vadakara side. The excise party stopped the bus there by giving signal. Thereafter, that bus was searched by the excise party in the presence of PWs.2 and 6, the conductor and the driver of the bus respectively. During the search, the appellant was seen possessing two boxes each containing twelve 750 ml. bottles of Jumbo XXX Rum. The sticker of the Kerala State Beverages Corporation was not seen affixed on the bottles. For sale in Pondicherry was also noted in those bottles. PW1 Crl. Appeal No.288 of 2006 -3- opened and examined the contents of one bottle when he realised that it was Indian made foreign liquor. Since the appellant had committed an offence under the Abkari Act, he was arrested by PW1 preparing Ext.P1 Arrest Memo. PW1 had seized 24 bottles, containing 18 litres of Indian made foreign liquor, under Ext.P2 Seizure Mahazar in the presence of witnesses. The bottle which was opened and examined was taken as sample for the purpose of chemical analysis and sealed the same. Thereafter, the appellant, properties and the records were handed over to PW4, the Excise Preventive Officer, Excise Range Office, Vadakara. PW4 registered Crime No.36 of 2002 of that Range Office in respect of the occurrence. Ext.P3 is the Crime and Occurrence Report thus prepared by PW4. PW5, the Excise Preventive Officer of that Range Office, produced the properties before the Judicial First Class Magistrate's Court, Vadakara. Ext.P4 is the List of Property and Ext.P5 is a copy of the Forwarding Note. Ext.P6 is a Site Plan prepared by PW7, the Village Assistant, Azhiyoor, showing the place of Crl. Appeal No.288 of 2006 -4- occurrence. Ext.P7 is the Certificate of chemical Analysis issued from the Regional Chemical Examiner's Laboratory, Kozhikode. The investigation of the case was conducted by PW8, the Excise Inspector, Excise Range Office, Vadakara. He 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, Kozhikode, and, from there, it was made over to the Assistant Sessions Court, Vadakara. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 8 and marked Exts.P1 to P7 and M.O.1 and M.O.2 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 Crl. Appeal No.288 of 2006 -5- guilty of the offence under Section 55(a) of the Abkari Act read with Rule 9 of the Foreign Liquor Rules. 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, appellant was arrested and the liquor was seized by PW1, the Assistant Excise Inspector, Excise Range Office, Chelannur. Whether he was competent for doing the same is the question to be considered and answered. The Government of Kerala had issued S.R.O.234 of 1967 empowering various officers to act in accordance with various provisions of the Abkari Act. Going by this Notification, as on 04-06-2002, the Assistant Excise Inspector was not a competent officer to detect the offence, arrest the accused and seize the contraband articles as he was not a notified officer. The Assistant Excise Inspector was Crl. Appeal No.288 of 2006 -6- empowered as an Abkari Officer only as per S.R.O.361 of 2009 dated 08-05-2009. Therefore, PW1 was not a competent officer to detect the offence, arrest the appellant and effect the seizure of liquor in this case as he was not a notified officer as on 04-06-2002, the date of occurrence of the alleged offence. This view is fortified by the rulings of this Court in **Subrahmaniyan v. State of Kerala (2010 (2) KLT 470)** and **Sasidharan v. State of Kerala (2012 (2) KLT 392)** . Therefore, the court below had no jurisdiction to take cognizance of the offence alleged in the complaint filed based on such detection, arrest and seizure. Consequently, the court below could not have framed a charge against the appellant 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 in this case 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. Crl. Appeal No.288 of 2006 -7- Therefore, the conviction and sentence passed against the appellant are liable to be set aside. 6. In the result, the conviction and sentence passed against the appellant by the court below are set aside. The bail bond executed by him shall stand cancelled. Since the appellant expired during the pendency of this appeal, no further orders are required. This appeal is disposed of as above. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE