Thayyil Ravi v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 22[ND] DAY OF AUGUST 2022 / 31ST SRAVANA, 1944 CRL.A NO. 1389 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 523/2002 OF ADDITIONAL DISTRICT ``` ``` COURT (ADHOC)-III, THALASSERY ``` ## **`APPELLANT/RESPONDENT:`** ``` THAYYIL RAVI, S/O. KRISHNAN, KOTTIYOOR AMSOM, CHUNKAKUNNU,, THALASSERY TALUK. BY ADV P.U.SHAILAJAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` SRI.SANAL.P.RAJ, PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **CRA No.1389/2007** **2** **P.V.KUNHIKRISHNAN, J. -------------------------------Criminal Appeal No.1389 of 2007 ---------------------------------------------Dated this the 22[nd] day of August, 2022** ## **JUDGMENT** The above appeal is filed by the accused in S.C.No.523/2002 on the file of the Additional Sessions Judge, Adhoc-III, Thalassery, against the conviction and sentence imposed on him as per judgment dated 12.04.2007. The above case is charge sheeted against the appellant alleging offences punishable under Section 8(2) of the Abkari Act. 2. The prosecution case is that on 12.02.2002 at 22 hours, the accused was found possessing 3 litres of illicit arrack at Chunkakunnu in Kottiyoor Amsom. Hence it is alleged that the accused committed the offence. 3. To substantiate the case, the prosecution examined PW1 to PW4. Exts.P1 to P8 are marked as exhibits on the side of the prosecution. One witness is examined on the side of the **CRA No.1389/2007** **3** defence as DW1. MO1 is the material object. After going through the evidence and documents, the trial court found that the accused committed the offence under Section 8(2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,00,000/and in default of payment of fine, the accused was sentenced to undergo simple imprisonment for two months. Aggrieved by the conviction and sentence, this Criminal appeal is filed. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. The learned counsel for the appellant submitted that there is huge delay in producing the contraband article before the court and there is no valid explanation for the same. The learned counsel submitted that, that itself is enough for acquitting the accused. The learned counsel further submitted that the seizure of contraband is within the jurisdiction of Kelakam Police Station and the investigation is conducted by PW4, Sub Inspector of Police, Peravoor, as directed by the Peravoor Circle Inspector. The learned counsel for the appellant submitted that the Sub Inspector of Police, Peravoor has no jurisdiction to investigate the case and **CRA No.1389/2007** **4** that will vitiate the trial. 6. The learned Public Prosecutor on the other hand submitted that there is oral and documentary evidence to substantiate the prosecution case and there is nothing to interfere with the conviction and sentence imposed on the appellant. 7. The point to be decided in this case is whether the accused committed the offence under Section 8(2) of hte Abkari Act. 8. This Court considered the contentions of the appellant and the Public Prosecutor. Admittedly there is a delay of more than one month in producing the contraband before the court. The reason, according to the prosecution, is that there was NGO’s strike and therefore the court could not accept the properties earlier. That is not a reason. The court staff is not examined in this case. This Court cannot accept the contention that the court is not accepting the property involved in a serious case like this because of NGO strike. Therefore this Court has to conclude that there is no proper explanation for delay in producing the article before the court. 9. The delay in producing the article is fatal to the **CRA No.1389/2007** **5** prosecution. This point is also considered by this Court in **Sukumaran v. State of Kerala (2019(3) KLT 920)** , **Ravi v. State-Sub Inspector of Police, Meppadi (2018(5) KHC 352)** and **Vikraman v. State of Kerala (2018(1) KLT 822)** . Relevant portion of the judgment in Ravi's case (supra) is extracted hereunder: “8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt. 9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act **CRA No.1389/2007** **6** upon Ext.P6 copy of the forwarding note.” 10. Moreover, admittedly the seizure of the property is from the jurisdiction limit of Kelakam Police Station. The investigation is conducted by the Sub Inspector of Police, Peravoor. It is stated that he investigated the case based on the direction from the Circle Inspector. When he is not authorised as per the statute, the Circle Inspector has no authority to delegate the investigation. This Court considered the same in **Moothedath Sivadasan v. State of 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 **CRA No.1389/2007** **7** 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 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 **CRA No.1389/2007** **8** 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.” 11. In the light of the above discussion, the appellant is entitled the benefit of doubt. Therefore, the Criminal appeal is allowed in the following manner: - i. The conviction and sentence imposed on the appellant as per judgment dated 12.04.2007 in S.C.No.523/2002 on the file of the Additional Sessions Judge, Adhoc-III, Thalassery, is set aside and the appellant is set at liberty. - ii. The bail bond, if any, executed by the appellant is cancelled. JV sd/- **P.V.KUNHIKRISHNAN JUDGE**