Saras v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: BABU MATHEW P. JOSEPH
Judgment Date: 2014-07-14
Court Decision / Holding: Conviction and sentence set aside; the appellant discharged; the appeal allowed.
Final Disposition: Conviction and sentence set aside; appellant discharged; appeal allowed.

Parties to the Case

Appellants / Petitioners

Saras, D/o Ponnu, Keezhaikonam, Nellanadu Village

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri. M. Dinesh
• Sri. Basant Balaji

Counsels for Respondents

• Smt. Seena Ramakrishnan, Public Prosecutor

Case Synopsis & Summary

This is a Kerala High Court criminal appeal by Saras challenging a conviction under Section 55(a) of the Abkari Act by the Additional Sessions Court (Adhoc) II, Thiruvananthapuram. The prosecution case proceeded on a patrol at Vandippuramukku in Nellanad Village on 24 July 1999, where the appellant was seen coming from the opposite side with a black jerrycan containing arrack. She attempted to flee; she was stopped, arrested, and the contraband was seized (Exts P1–P3) with the arrest memo (Ext P5) and intimation of arrest (Ext P6). The material was produced before the Excise Range Office; the case was investigated by PW3 and PW4; it culminated in a charge under Section 55(a). The trial court convicted and sentenced to 1½ years’ imprisonment and Rs. 1,00,000 fine, with default imprisonment. On appeal, the appellant contended that PW4, the Assistant Excise Inspector, was not a competent Abkari officer under S.R.O. No. 234 of 1967 and thus lacked jurisdiction; relying on Subrahmaniyan v. State of Kerala (2010) 2 KLT 470 and Sasidharan v. State of Kerala (2012) 2 KLT 392, she argued cognizance, framing of charge and trial were void. The High Court, examining the relevant SROs, held that as on 24-07-1999 the Assistant Excise Inspector was not a competent officer, and therefore cognizance and the trial were without jurisdiction. Consequently, the conviction and sentence were set aside, and the appellant discharged, with bail bonds cancelled; the appeal was allowed.

Provisions of Law Cited

Abkari Act, Section 55(a)Cr.P.C., Section 313Cr.P.C., Section 227

Legal Doctrines & Maxims

non est in the eye of law

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that PW4, the Assistant Excise Inspector, was not a competent officer to detect the offence, arrest the accused and seize the contraband, since he was not a notified Abkari officer under S.R.O. No. 234 of 1967. Relying on Subrahmaniyan v. State of Kerala (2010) 2 KLT 470 and Sasidharan v. State of Kerala (2012) 2 KLT 392, it was urged that as of 24-07-1999 the officer was not empowered, and hence cognizance, charge-framing and trial were void for lack of jurisdiction. The defence argued that Section 227 Cr.P.C. requires discharge where trial is without jurisdiction. It was also urged that the evidence (Exts P1–P6; MO1) cannot sustain a conviction without lawful detection and seizure by an empowered officer. The aim is to secure acquittal on jurisdictional grounds and prevent a void conviction from standing in law.

Contentions of Respondents

The State contends that PW4 acted within his statutory authority under the Abkari Act; the SROs and the relevant records establish a proper detection, arrest and seizure; cognizance and charge were validly taken and the trial conducted in accordance with law. Relying on the prosecution evidence and the statutory framework, the State submits that the appeal should not disturb the lower court’s findings and that technical pleas based on prior decisions should not vitiate a valid conviction.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Subrahmaniyan v. State of Kerala	2010 (2) KLT 470	Mentioned Only	Cited by the appellant; the current judgment does not explicitly adopt or apply its ratio; emphasis is on SRO No. 234 of 1967.
Sasidharan v. State of Kerala	2012 (2) KLT 392	Mentioned Only	Cited by the appellant; the judgment does not indicate explicit treatment of its ratio.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** ## **MONDAY, THE 14TH DAY OF JULY 2014/23RD ASHADHA, 1936** ## **CRL.A.No. 5 of 2006** **------------------------** **AGAINST THE JUDGMENT IN S.C. NO. 2015/2001 of ADDL.SESSIONS COURT, FAST TRACK (ADHOC)-II,THIRUVANANTHAPURAM DATED 17-112005** ## **CP 45/2001 of JUDICIAL FIRST CLASS MAGISTRATE-II, ATTINGAL** ## **APPELLANT/ACCUSED:** **SARASU, D/O. PONNU, KOITHARAKUZHI VEEDU, KEEZHAIKONAM, NELLANADU VILLAGE.** **BY ADVS.SRI.M.DINESH SRI.BASANT BALAJI** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **BABU MATHEW P. JOSEPH, J.** **= = = == = = = = = = = = = = = = = = Crl.A. No. 5 of 2006** **= = = = = = = = = = = = = = = = = = = Dated this the 14[th] day of July, 2014** ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court(Adhoc)II, Thiruvananthapuram, for the offence under Section 55(a) of the Abkari Act. She was sentenced to undergo rigorous imprisonment for 1½ years and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for six months. The conviction and sentence so passed by the court below are challenged in this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. Crl.A.No. 5/2006 2 3. The case of the prosecution is briefly stated as follows: PW4, the Assistant Excise Inspector, Excise Range Office, Vamanapuram, and his party were on patrol at Vandippuramukku in Nellanad Village, at about 11 a.m.on 24-7-1999. While so, the appellant was seen coming from the opposite side carrying a black jerrycan in her right hand. Seeing the excise party, the appellant attempted to flee away. But, the excise party stopped her there. On examining the 2.5 litre jerrycan carried by the appellant, it was found that it contained full of arrack. Since she has committed an offence, she was arrested then and there. Ext.P5 is the Arrest Memo and Ext.P6 is the Intimation of Arrest. The jerrycan containing arrack was labelled and sealed and seized the same under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW4 reached the Excise Range Office with the appellant, contraband and the records and registered Crime No.18 of 1999 as directed by the Excise Inspector. Ext.P2 is the Occurrence Report thus Crl.A.No. 5/2006 3 prepared by PW4. He has produced the contraband along with Ext.P3 List of Property before the court. PW3, the Excise Inspector, Excise Range Office, Vamanapuram, conducted the investigation of the case. After completing the investigation, he has submitted the Final Report before the Judicial First Class Magistrate's Court-II, Attingal. 4. The learned Magistrate, after complying with the legal requirements, committed the case to the Court of Session, Thiruvananthapuram, and, from there, it was made over to the Assistant Sessions Court, Attingal. Later, the case was withdrawn from that court and made over to the Additional Sessions Court(Adhoc)II, Thiruvananthapuram. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant has pleaded not guilty of the charge. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P6 and MO.1 on their side. The appellant was examined under Section 313 of Cr.P.C. She has denied all the incriminating Crl.A.No. 5/2006 4 circumstances shown against her. DW1 was examined on the side of the defence. The court below, after considering the matter, found the appellant guilty of the offence alleged and convicted her thereunder. She was heard on the question of sentence and imposed the sentence on her. 5. The appellant has raised various contentions challenging the conviction and sentence passed against her. Learned counsel for the appellant submits that PW4, the Assistant Excise Inspector, was an incompetent officer to detect the offence, arrest the appellant and seize the contraband. He has relied on S.R.O.No.234 of 1967 issued by the Government of Kerala under the Abkari Act empowering various officers to act in accordance with various provisions of the Abkari Act and on the rulings of this Court in **Subrahmaniyan v. State of Kerala (2010 (2)KLT 470)** and in **Sasidharan v. State of Kerala (2012 (2)KLT 392)** and contended that as on 24-7-1999, the Assistant Excise Inspector was not a competent officer to Crl.A.No. 5/2006 5 detect the offence, arrest the accused and seize the contraband as he was not a notified officer in S.R.O.No. 234 of 1967. He further contends that the Assistant Excise Inspector was empowered as an Abkari Officer only as per S.R.O.No.361 of 2009 dated 08-05-2009. On a perusal of S.R.O. No.234 of 1967 and the rulings cited, this Court is satisfied that as on 24-7-1999, the Assistant Excise Inspector, Excise Range Office, Vamanapuram, was not a competent officer to detect the offence, arrest the accused and effect seizure of the contraband as contended by the learned counsel for the appellant. 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 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 in Crl.A.No. 5/2006 6 this case without jurisdiction by the court below, it cannot end either in conviction or in acquittal. The accused 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. 6. In the result, the conviction and sentence passed by the court below against the appellant are set aside. The appellant is discharged. She is set at liberty. The bail bond executed by her shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. To Judge Crl.A.No. 5/2006 7