Varghese Thomas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **THURSDAY, THE 28TH DAY OF AUGUST 2014/6TH BHADRA, 1936** ## **CRL.A.No. 855 of 2004 ( )** **------------------------------------** **AGAINST THE JUDGMENT IN S.C.No. 229/2001 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC) FAST TRACK COURT NO.I, MANJERI DATED 14-05-2004** ## **APPELLANT/ACCUSED:** **------------------------------------** **VARGHESE THOMAS, S/O. VARGHESE, PLAMKOOTHIL, MOOCHIPARATHA, EDAKKARA, MALAPPURAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENT/STATE:** **-------------------------------** **THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, EDAKKARA POLICE STATION- THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM KOCHI-31.** ## **BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MJL** ## **BABU MATHEW P. JOSEPH, J. --------------------------------Crl.Appeal No.855 of 2004 ------------------------------Dated this the 28[th ] day of August, 2014** ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Manjeri, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- 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 Assistant Sub Inspector of Police, Edakkara Police Station, received information that the appellant Crl.Appeal No.855 of 2004 2 was found in possession of arrack and hence he was confined by local people including ladies in front of his house at Moochipparatha in Edakkara village, at 5.15 p.m. on 05-02-2000. Therefore, PW1 and his party reached that place at 5.45 p.m. On examining the 750ml bottle found possessed by the appellant, full of arrack was found in it. PW1 had drawn 350ml of arrack in a 350ml bottle as sample from the 750ml bottle containing arrack. Thereafter, the sample bottle as well as the other bottle were sealed and seized by PW1 under Ext.P3 Seizure Mahazar in the presence of witnesses. PW1 had also arrested the appellant preparing Ext.P1 Arrest Memo. Ext.P2 is the Inspection Memo. Thereafter, PW1 reached Edakkara Police Station with the appellant and the properties and registered Crime No.57 of 2000 of that Police Station in respect of the occurrence. Ext.P4 is the FIR thus drawn by PW1. The initial investigation of the case had been conducted by PW4, the Sub Inspector of Police, Nilambur Police Station. He had prepared Crl.Appeal No.855 of 2004 3 Ext.P5 Scene Mahazar in the presence of witnesses. He had questioned the witnesses and recorded their statements. He had produced the properties before the court along with Ext.P6 List of Property. He had also submitted the Forwarding Note before the court. Ext.P7 is a copy of the Forwarding Note. CW13, the Sub Inspector of Police, Edakkara Police Station, continued the investigation and completed the same. CW14, the Sub Inspector of Police, Edakkara Police Station, had prepared the Final Report and submitted the same before the Judicial First Class Magistrate's Court, Nilambur. 4. The learned Magistrate committed the case to the Court of Session, Manjeri, and, from there, it was made over to the Assistant Sessions Court, Manjeri. The Assistant Sessions Court, Manjeri, framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant had pleaded not guilty of the charge. Later, the case was transferred to the Additional Sessions Court (Adhoc)-I, Manjeri. The Crl.Appeal No.855 of 2004 4 prosecution examined PWs 1 to 5 and marked Exts.P1 to P8 on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. The defence had not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abakari 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. The prosecution case is that the appellant was found in possession of illicit arrack by PW1 and his party and he was arrested then and there. The illicit arrack found was seized by PW1 under Ex.P3 Seizure Mahazar in the presence of witnesses. PW1 himself had registered the case in respect of the occurrence. Ext.P4 is the FIR thus drawn by him. The appellant's case is that PW4, being an Assistant Sub Inspector of Police, was not a Crl.Appeal No.855 of 2004 5 competent Police Officer to detect the offence or seize the contraband as he was not an Abkari Officer notified by the Government of Kerala empowering to detect the offence or seize the contraband under Section 34 of the Abkari Act. 6. The Government of Kerala issued a notification under Section 4 of the Abkari Act which is S.R.O.No.321 of 1996. 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 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)”_ Crl.Appeal No.855 of 2004 6 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 for the purposes of Sections 31 to 35, 38, 40 to 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 an Abkari Officer under Section 34. Here, the detection of the offence and the seizure of the contraband were effected by PW1 who was only an Assistant Sub Inspector of police at that time and not a Sub Inspector of Police. Since an Assistant Sub Inspector of Police is not a notified Abkari Officer, he is incompetent to detect the offence and seize the Crl.Appeal No.855 of 2004 7 contraband. An Abkari Officer notified by the Government of Kerala under Section 4 of the Abkari Act alone is competent to do the same. Therefore, the court below had no jurisdiction to take cognizance of the offence alleged in the complaint filed based on such detection and seizure. 7. It is the admitted case of the prosecution that a major portion of the investigation of the case had been conducted by PW4, the Sub Inspector of Police, Nilambur Police Station. The prosecution had not pleaded or proved that PW4 was holding full additional charge of the Sub Inspector of Police, Edakkara Police station, at that time. There is no evidence also among the records to show that he was holding full additional charge of Edakkara Police Station while conducting the investigation of the case. Admittedly, the alleged occurrence had taken place within the territorial limits of Edakkara Police Station. In the light of these facts, the learned counsel for the appellant submits that the Crl.Appeal No.855 of 2004 8 investigation had been conducted in this case by a Police Officer who was incompetent to do the same. 8. As already noted, the investigation of a case of this nature can be conducted by an Abkari Officer notified by the Government of Kerala under Section 4 of the Abkari Act. The relevant notification namely, S.R.O.No.321 of 1996 has already been quoted. 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 the purposes of Sections 31 to 35, 38, 40 to 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 Crl.Appeal No.855 of 2004 9 exercise jurisdiction as Abkari Officer only under their respective jurisdiction. Here, the investigation had been conducted by PW4. He was entitled to exercise jurisdiction only within the territorial limits of Nilambur Police Station. The Sub Inspector of Police, Nilambur Police Station, does not have jurisdiction as an Abkari Officer within the territorial limits of Edakkara Police Station as the occurrence in this case had taken place within the limits of Edakkara Police Station. 9. A learned Single Judge of this Court in **Saji @ Kochumon v. State of Kerala [2010(3) KLT 471]** had 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 Crl.Appeal No.855 of 2004 10 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 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 Sub Inspector of Police authorized to act as Abkari Officer can exercise jurisdiction only within the territorial limits of his Police Station. Therefore, PW4, the Sub Inspector of Police, Nilmbur Police Station, had exceeded the limits of his jurisdiction by investigating the case on hand which was within the territorial limits of Edakkara Police Station. As the investigation was conducted by PW4, an Crl.Appeal No.855 of 2004 11 incompetent officer, the court below had no jurisdiction to take cognizance of the offence alleged in the complaint filed based on such investigation. 10. In view of these facts, the court below could not have framed 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 in this case 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. 11. 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. The amount, if Crl.Appeal No.855 of 2004 12 any, deposited by the appellant as directed by this Court shall be returned to him. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** MJL