SURENDRAN and SANTHA v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944 ``` ``` CRL.A NO. 1455 OF 2007 ``` ``` AGAINST THE JUDGMENT SC 888/2003 OF PRINCIPAL ASSISTANT ``` # **`SESSIONS COURT, KOLLAM`** ## **`APPELLANTS/ACCUSED:`** ``` 1SURENDRAN, S/O.MUHAMMED KUNJU SUNIL BHAVANAM, PRAYAR THEKKUM MURI,, CLAPPANA VILLAGE, KOLLAM DISTRICT. 2SANTHA, D/O KUNJUPENNU, SUNIL BHAVANAM, PRAYAR THEKKUM MURI, CLAPPANA VILLAGE,, KOLLAM DISTRICT. BY ADV SRI. K.SIJU ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, OACHIRA POLICE STATION,, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SRI.SANAL.P.RAJ, PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **Criminal Appeal No.1455/2007** **2** **P.V.KUNHIKRISHNAN, J. -------------------------------Criminal Appeal No.1455 of 2007 ---------------------------------------------Dated this the 25[th] day of July, 2022** ## **JUDGMENT** The above appeal is filed against the conviction and sentence imposed on the appellants as per judgment dated 31.07.2007 in S.C. No.888/2003 on the file of the Principal Assistant Sessions Judge, Kollam. The case was chargesheeted alleging offences punishable under Section 55(a) and (i) of the Abkari Act. 2. The prosecution case is that on 04.06.2001, at about 12.10 am, the appellants were found engaged in illicit distillation of arrack by setting up the implements and apparatus produced in this case and also found in possession of 3.5 litres of arrack in the kitchen of their residence by name Sunil Bhavanam, Prayar Thekkum Muri. 3. To substantiate the case, the prosecution examined PW1 to PW5. Exts.P1 to P6 are the exhibits marked on the side of the prosecution. MO1 to MO6 are the material objects. Exts.C1 and C2 are the documents marked as court exhibits. **Criminal Appeal No.1455/2007** **3** 4. After going through the evidence and the documents, the trial court found that the appellants committed the offence under Section 55(a) of the Abkari Act and they were sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- each under Section 55(a) of the Abkari Act. In default of payment of fine, they were directed to undergo simple imprisonment for a period of one year each. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard the learned counsel for the appellants and the learned Public Prosecutor. 6. The learned counsel for the appellants submitted that the forwarding note is not marked in this case. The learned counsel also submitted that part of the investigation in this case is conducted by PW5, Additional Sub Inspector of Police, Karunagappally. The alleged incident happened in Ochira Police Station. The learned counsel submitted that he is not an authorised officer to investigate the case as per the Abkari Act and therefore the entire investigation is vitiated for that purpose. **Criminal Appeal No.1455/2007** **4** 7. The Public Prosecutor on the other hand submitted that, there is oral and documentary evidence to prove the case and there is nothing to interfere with the conviction and sentence imposed on the appellant. 8. This Court considered the contentions of the appellants. It is an admitted fact that the forwarding note is not marked in this case. The importance of forwarding note is considered by this Court in several judgments. If that is not produced, it will be fatal to the prosecution. 9. This Court in several decisions considered the relevancy of the forwarding note. Some of the decisions are **Gireesh @ Manoj v. State of Kerala [2019(4) KLT 79]** , **Vijayan @ Pattalam Vijayan and another v. State of Kerala [2018 (2) KHC 814]** and **Prakasan and another v. State of Kerala [2016 KHC 96]** . The relevant portion of the judgment in **Gireesh's case** (supra) extracted hereunder: “14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by PW5 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for **Criminal Appeal No.1455/2007** **5** sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See Prakasan v. State of Kerala (2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16)).” 10. Similarly, part of the investigation is conducted by the Additional Sub Inspector of Police, Karunagappally whereas the alleged seizure was within the jurisdiction of Ochira Police Station. The learned counsel submitted that PW5 has no authority to investigate the case. The trial court rejected this contention saying that there is authorisation by the Circle Inspector. I cannot agree with the same. If an unauthorised person investigate the case, the entire investigation is vitiated for that reason itself. This Court considered the same in **Moothedath Sivadasan v. State of** **Criminal Appeal No.1455/2007** **6** ## **Kerala [2021 (1) KLT 744]** . Relevant portion is extracted ## hereunder: “10. Admittedly, the occurrence in this case took place within the jurisdiction of the Iritty Police Station. As per Section 70 of the Act, all notification and orders conferring powers, imposing duties and making appointments under the Act may respectively refer to the persons concerned specially by name or in virtue of their office or to classes of officials generally by their official titles, and all courts shall take judicial notice thereof. There is nothing on record to show that the Sub Inspector of Police Karikkottakary has jurisdiction to conduct investigation in respect of an Abkari offence within the jurisdiction of Iritty Police Station. When PW6 was examined before court, his competency to conduct investigation in respect of an offence within the Iritty Police Station has not been explained. A Sub Inspector of Police, authorised to act as an Abkari Officer, can exercise his jurisdiction only within the territorial limits of his Police Station. It pre-supposes that PW6 was incompetent to conduct investigation touching an offence relating to the Act within the jurisdiction of the Iritty Police Station. A learned single bench of this Court had occasion to consider an identical matter in **Saji @ Kochumon v. State of Kerala** [2010 (3) KLT 471] and held that the **Criminal Appeal No.1455/2007** **7** Sub Inspector of Police authorised to act as Abkari officer within his jurisdiction alone is competent to exercise jurisdiction within the territorial limits of his Police Station. It goes without saying that he cannot travel beyond the territorial limits of jurisdiction and conduct investigation relating to an Abkari offence outside his jurisdiction. Hence, in the absence of an order conferring powers to conduct investigation, any investigation alleged to have been done by PW6 is illegal and without jurisdiction. Sub Inspector of Police, Iritty was appointed as the Abkari Officer within the Iritty territorial limits of his police station by notification SRO 321/1996 issued by the Government in exercise of power provided under Section 4 of the Act. Section 3 (21 A) of the Act defines the term police station. As per Section 3 (21 A), it includes any place which the Government may, by notification, declare to the police station for the purpose of the Act. Thus the respective jurisdiction could only be the jurisdiction of his police station.” 8. In the light of the above discussion, I think the appellant is entitled the benefit of doubt. Therefore, the Criminal appeal is allowed in the following manner: **Criminal Appeal No.1455/2007** **8** i. The conviction and sentence imposed on the appellants as per judgment dated 31.07.2007 in S.C. No.888/2003 on the file of the Principal Assistant Sessions Judge, Kollam, are set aside and the appellants are set at liberty. ii. The bail bonds, if any, executed by the appellants are cancelled. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV