Thankachan s/o Devassia v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942** ## **CRL.A.No.1514 OF 2005** **AGAINST THE JUDGMENT IN SC NO.1019/2004 DATED 10-08-2005 ON THE FILE OF THE ADDITIONAL SESSIONS COURT (ADHOC-1), THALASSERY.** ## **APPELLANT/ACCUSED:** **THANKACHAN S/O.DEVASSIA, KAVUMKARI, KAVUMKARI, PADIYOOR AMSOM, TALIPARAMBA TALUK, KANNUR.** ## **BY ADV. SRI.GRASHIOUS KURIAKOSE** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **R1 BY SRI.K.B.UDAYAKUMAR, SR.GP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.1514 OF 2005 2 ## **JUDGMENT** ## **Dated this the 9th day of October 2020** ... The appellant is the accused in Sessions Case No.1019 of 2004 on the file of the Additional Sessions Court (Adhoc-1), Thalassery. 2. The above case is charge sheeted by the Irikkur Police Station against the appellant alleging offences punishable under Section 55(g) of the Abkari Act. 3. The prosecution case is that on 2.1.2003 at 5.15 p.m., the accused was found in possession of 50 litres of wash on the ridge of the paddy field of one Sivaraman situated at Karavoor of padiyoor village. Hence, it is alleged that, the accused committed the said offence. It is alleged that, the accused escaped from the scene when he saw the police party. 4. To substantiate the case, the prosecution examined PW1 to PW4. Exhibits P1 to P6 are the CRL.APPEAL NO.1514 OF 2005 3 exhibits marked on the side of the prosecution. MO1 is the material object. After going through the evidence and documents, the trial court found that, the accused committed the offence under section 55(g) of the Abkari Act. The appellant/accused is convicted and sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he is directed to undergo simple imprisonment for one month. Aggrieved by the above conviction and sentence, this criminal appeal is filed. 5. Heard Sri.Pranoy K.Kottam, the learned counsel for the appellant and the learned public prosecutor. 6. The learned counsel for the appellant mainly raised two points. The counsel submitted that, the detection in this case is within the jurisdiction of Irikkur Police Station. PW3 is the Sub Inspector of Police, Irikkur Police CRL.APPEAL NO.1514 OF 2005 4 Station. According to the counsel, the investigation in this case is conducted by PW4 who is the Sub Inspector of Police, Mattannur. According to the counsel, the Sub Inspector of Police, Mattannur has no jurisdiction to investigate the matter. The counsel submitted that, only the officer in whose jurisdiction the incident happened alone can investigate the case. The counsel relied the judgment of this Court in Balachandran v. State of Kerala [2020(3) KHC 697]. The relevant paragraphs of the said judgment are extracted hereunder: **“15. Therefore, it is clear that all Excise Department Officers not below the rank of Excise Inspector can file a final report under S.50 only if the detection is within the area for which they are appointed. Clause (8) of SRO No.234/67 is clear about that. Of course, in the proviso to SRO No.234/67, it is stated that, with reference to S.31 and S.34 of the Act, there shall be no limit of jurisdiction within the Kerala State for the Abkari and other Department Officers named therein; but all persons arrested and all seizures made thereunder shall, without delay, be made over to** CRL.APPEAL NO.1514 OF 2005 5 **the Excise Officer possessing local jurisdiction. 16. Admittedly, in the case, final report is filed by PW5 who is the Excise Circle Inspector of Aluva Excise Range. Admittedly, arrest and seizure of the contraband article in this case happened within the jurisdiction of Excise Range, North Paravur. In such a situation, PW5 has no authority or authorization to submit the final report in this case. Only charge witness No.11, the Excise Inspector of North Paravur, Excise Range or any competent officers of Excise Range, North Paravur can conduct investigation and submit final report in this case. In this case, an incompetent officer filed the final report under S.50 of the Abkari Act. It is a fundamental defect that will go to the root of the case. The Magistrate cannot take cognizance based on a final report submitted by an incompetent officer.”** 7. The counsel also submitted that, the property list is not marked in this case. If the property list is not marked, the counsel submitted that, there is no evidence to show that when exactly the property reached in the court. Therefore, the counsel submitted that, on that point also, the appellant is entitled the benefit of doubt. CRL.APPEAL NO.1514 OF 2005 6 8. The point for consideration in this case is whether the accused committed the offence under Section 55(g) of the Abkari Act ? 9. Admittedly, the property list is not produced and marked in this case. The property list is an important document in abkari cases and if it is not produced and marked, that is fatal to the prosecution. Without property list, this Court may not be able to find out when actually the property reached the court. Usually, the contraband article seized will be produced before the Magistrate Court with a property list. The court can gather the date on which the contraband reached the court from the entries in the property list. There is no property list produced in this case. In such circumstances, the court is handicapped in finding out the date on which the property reached the court. Simply because the police/excise witnesses deposed that, the property list reached in the court on such and CRL.APPEAL NO.1514 OF 2005 7 such date, unless the documentary evidence like property list is there to verify, the oral evidence adduced by those witnesses can't be believed. In this case the property list is not marked. In such circumstances, on this ground the accused is entitled to the benefit of doubt. 10. I see some force in the argument of the appellant that PW4, the Sub Inspector of Police, Mattannur has no jurisdiction in investigating this matter. Admittedly, the detection was within the jurisdiction of Irikkur Police Station. In such circumstances, in the light of the decision of this Court in **Balachandran’s case** (supra), the investigation is by an incompetent officer. Moreover, admittedly, the property list is not marked in this case. For this reason also, the benefit of doubt will go in favour of the appellant. Hence, this criminal appeal is allowed. CRL.APPEAL NO.1514 OF 2005 8 The conviction and sentence imposed on the appellant as per the judgment dated 10.08.2005 in S.C.No.1019 of 2004 of the Additional Sessions Court (Adhoc-1), Thalassery are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled. ## **Sd/-** **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**