Sasikumar @ Mani v. State of Kerala

## C.R. IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 18TH DAY OF JANUARY 2016/28TH POUSHA, 1937 CRL.A.No. 1305 of 2007 --------------------------- AGAINST THE JUDGMENT IN SC 133/2006 of ADDL. SESSIONS COURT(ADHOC)II, THRISSUR APPELLANT/ACCUSED:: SASIKUMAR @ MANI, S/O. NARAYANAN, PERUMANNIL VEETTIL, PALLAM ESTATE PADY DESOM DESAMANGALAM VILLAGE, TALAPPILLY TALUK. BY ADVS.SRI.P.VIJAYA BHANU SRI.PRASUN.S RESPONDENT/COMPLAINANT - STATE: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.R.** ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 1305 of 2007 = = = = = = = = = = = = = = = = = = = Dated this the 18[th] day of January, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-II, Thrissur, for the offence under Section 8 (2) of the Abkari Act. He was sentenced to undergo simple imprisonment for four years and to pay a fine of rupees one lakh and, in default of payment of fine, to undergo simple imprisonment for one year. Challenging the conviction and sentence so 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. 3. The prosecution case is briefly stated as follows: PW1, the Sub Inspector of Police, Cheruthuruthy Police Station, and his party were inspecting vehicles at Pallam CRA 1305/2007 2 Estatepady in Arangottukara at about 11.15 a.m. on 29.3.2004. While so, seeing an autorickshaw bearing Reg.No.KL-8/J 2118 driven by the appellant, the police party has given signal for stopping that vehicle. Accordingly, the appellant stopped the vehicle there. On examining inside the autorickshaw, MO.1 10 litre black jerrycan containing full of arrack was found behind the back seat of that autorickshaw. Therefore, the appellant was arrested by PW1 at 11.25 a.m. preparing Ext.P1 Arrest Memo. Ext.P2 is the Arrest Notice. PW1 has drawn three samples of 375 ml. each in three bottles from the bulk of arrack contained in the jerrycan. MO.1 jerrycan containing arrack, samples, autorickshaw and the key found in the autorickshaw were seized by PW1 under Ext.P3 Seizure Mahazar in the presence of witnesses. Thereafter, PW1 and his party reached Cheruthuruthy Police Station with the appellant and the properties and PW1 registered Crime No.73 of 2004 of that Police Station in respect of the occurrence. Ext.P4(a) is CRA 1305/2007 3 the F.I.R. thus drawn by PW1. He has prepared Ext.P5 List of Property for producing the properties before the court. The appellant, properties and the records were produced before the Judicial First Class Magistrate's Court, Wadakkancherry. The investigation of the case has been conducted by PW7, the Circle Inspector of Police, Chelakkara. He has gone to the place of occurrence and prepared Ext.P9 Scene Mahazar. He has questioned the witnesses and recorded their statements. Ext.P10 is the Scene Plan prepared by the Village Officer, Desamangalam, showing the place of occurrence. Ext.P12 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. PW8, the Sub Inspector of Police, Cheruthuruthy Police Station, has completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate committed the case to the Court of Session, Thrissur, and, from there, it was made CRA 1305/2007 4 over to the Additional Sessions Court (Ad hoc)-II, Thrissur. The court below framed a charge against the appellant alleging the offence under Section 8(2) of the Abkari Act. He pleaded not guilty of the charge. The prosecution examined PWs.1 to 8 and marked Exts.P1 to P12 and MO.1 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 8(2) of the Abkari Act and convicted him thereunder. 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. According to the prosecution, PW1, the Sub Inspector of Police, Cheruthuruthy Police Station, CRA 1305/2007 5 has detected the offence. He was a competent officer for doing the same. The investigation of the case was conducted by PW7, the Circle Inspector of Police, Chelakkara. There is no dispute with regard to the fact that the occurrence has allegedly taken place within the territorial limits of Cheruthuruthy Police Station. There is also no dispute with regard to the fact that Cheruthuruthy Police Station is within the territorial jurisdiction of the Circle Inspector Police, Wadakkancherry, and not within the territorial jurisdiction of the Circle Inspector of Police, Chelakkara. 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 CRA 1305/2007 6 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 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 CRA 1305/2007 7 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 has been conducted by PW7. He was entitled to exercise jurisdiction only within the territorial limits of Chelakkara Police Circle Office. The Circle Inspector of Police, Chelakkara Police Circle Office, does not have jurisdiction as an Abkari Officer within the territorial limits of Wadakkancherry Police Circle Office as the occurrence in this case took place within the limits of Wadakkancherry Police Circle Office. 6. A learned single Judge of this Court in **Saji @ Kochumon v. State of Kerala (2010(3)KLT 471)** CRA 1305/2007 8 ## 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 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 CRA 1305/2007 9 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 Circle Inspector of Police authorised to act as Abkari Officer can exercise his jurisdiction only within the territorial limits of his circle office. Therefore, PW7, the Circle Inspector of Police, Chelakkara Police Circle Office, has exceeded the limits of his jurisdiction by investigating the case on hand which was within the territorial limits of Wadakkancherry Police Circle Office. As the investigation was conducted by PW7, an incompetent officer, the court below had no jurisdiction to take cognizance of the offence alleged in the complaint filed CRA 1305/2007 10 based on such investigation. 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 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. He is entitled to be discharged in this case. 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. ## This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH** ks True copy **JUDGE** P.S. (Hr.Gr.)To Judge CRA 1305/2007 11