Vijayan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 21ST DAY OF JANUARY 2016/1ST MAGHA, 1937** **CRL.A.No. 807 of 2004 ( )** **--------------------------** **AGAINST THE JUDGMENT IN SC 377/2001 of ADDL.DISTRICT & SESSIONS JUDGE, FAST TRACK (ADHOC-1), KOZHIKODE DATED 05-05-2004** **APPELLANT(S)/ACCUSED: -------------------VIJAYAN, S/O. KUNHIRAMAN, MOONUKANDAM CHALIL, MELADY AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.** **BY ADV. SRI.R.BINDU (SASTHAMANGALAM)** **RESPONDENT(S)/COMPLAINANT:** **-------------------------STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SRI. N. SURESH.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.807 of 2004 ---------------------------------------------Dated this the 21[st] day of January, 2016 ## **JUDGMENT** This appeal is preferred by the accused against the conviction and sentence in S.C.No.377/2001 before Additional District and Sessions Judge, Fast Track (AdhocI), Kozhikode u/s.55(a) of the Abkari Act. The charge is that on 3.7.1997, the Preventive Officer, Perambra Excise Circle Office got an information that Indian Made Foreign Liquor was transporting from Mahe in a bus by name 'Zenith' bearing registration No.KL-13/B 4678 from Vadakara to Kozhikode. On the basis of that information, Excise party intercepted the vehicle at kalarippady bus stop at 9.10 a.m. and the appellant was found seated on the left side of the 2[nd] Crl.A. No.807/2004 2 seat on the left row from the back door. They searched the bus and detected eight bottles of Golkonda brandy each having 375 ml for sale in Pondicherry only. Hence, the Preventive Officer, Perambra seized the contraband articles and arrested the appellant. They subsequently handed over the seized articles and the accused to the Excise Inspector, Koyilandy Excise Range, where they registered a crime. After completing investigation, Excise Inspector, Koyilandy laid charge before Judicial First Class Magistrate, Payyoli from there the case was committed to Sessions Court, Kozhikode. 2. During trial, prosecution examined PW1 to PW4 and marked Exts.P1 to P8. The material objects MO1 to MO3 were admitted in the trial Court. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any Crl.A. No.807/2004 3 defence evidence. The learned Additional Sessions Judge convicted the accused u/s.55(a) of the Abkari Act and sentenced thereunder. Being aggrieved by that, he preferred this appeal. 3. The learned counsel appearing for the appellant contended that there was no mention about the place of occurrence from where MO1 was seized, either in the jurisdiction of Perambra Circle Range or in the jurisdiction of Koyilandy Circle Range. The offence was detected by the Preventive Officer, Excise Range Perambra and the case was registered by the Excise Inspector, Koyilandy who completed the investigation, and laid charge before Court. He has no jurisdiction to investigate this case. I heard the learned Public Prosecutor also. 4. The offence was detected by PW1 who was the preventive officer, Excise Circle Office, Perambra, but Crl.A. No.807/2004 4 he handed over the seized articles and the accused in the Excise Office, Koyilandy where they registered a crime. The final report was filed by the Excise Inspector, Koyilandy and the appellant contended that he had no jurisdiction to conduct an investigation by exercising power u/s.42 to 53 of the Abkari Act, since the offence was committed within the jurisdiction of the Perambra Excise Circle. In this context, I have gone through the oral evidence of PW1, who is the detecting officer. His evidence shows that on 3.7.1997 while he was working as Preventive Officer, Excise Circle Inspector's Office, Perambra, at about 9.10 a.m. he inspected the bus 'Zenith' on the National Highway at Kalarippady bus stop and the accused was found sitting in the 2[nd] seat on the left row from the back door and detected 8 bottles of brandy each containing 375 ml. The accused was arrested and he Crl.A. No.807/2004 5 took sample from one bottle, thereafter he arrived at the Excise Circle Inspector's Office, Peambra. Ext.P2 is the arrest memo. He prepared Ext.P3 mahazar. The independent witnesses present there attested Ext.P3. The seized bottles were marked as MO1 series. 5. The seizure of foreign liquor was supported by PW2, the Excise Guard working at Excise Circle Office, Perambra. He also identified MO1 to MO3. PW2 also attested Ext.P3 mahazar. Analysing the oral evidence of PW1 and PW2, it is clear that the offence was detected within the jurisdiction of Excise Circle Inspector's Office, Perambra. 6. PW3 prepared Ext.P4 site plan as per the request of the Excise officials, Koyilandy. PW4 deposed that on 9.6.2000 he was the Excise Inspector, Koyilandy and Crime 86/1997 was registered by CW5 then Excise Crl.A. No.807/2004 6 Inspector, Koyilandy . PW4 conducted investigation in this case and laid charge before Court. CW5 subsequently died and PW4 identified his signature. Ext.P5 is the occurrence report prepared by the Excise Inspector, Koyilandy and Ext.P6 is the property list. The seized articles were produced before chemical examiner's lab and Ext.P7 is the chemical examination report. A perusal of the evidence shows that the offence was detected within the jurisdiction of the Excise Range Office, Perambra and the crime was registered by the Excise Inspector, Koyilandy, who completed the investigation and laid charge before Court. Therefore, the Excise Inspector, Koyiland has no power and jurisdiction to investigate a case outside his jurisdiction, that is within the Perambra Excise Range. 7. This Court, while discussing the power of the Crl.A. No.807/2004 7 ## Sub Inspector of Police, in **Saji @ Kochumon** v. **State of** ## **Kerala** [2010 (3) KLT 471] held as follows: “6. The final report was submitted before the court by PW7, in his capacity as Sub Inspector, Veeyapuram. The report does not disclose on what power or authority he submitted the final report when he is not the Abkari Officer competent to exercise the power under S.50 of the Abkari Act within the territorial jurisdiction of Edathwa police station. The final report does not disclose that he was authorised by the Government to exercise the power under S.50 of the Abkari Act in respect of jurisdiction of Edathwa police station. Though from the witness box PW7 claimed that he was authorised by the Circle Inspector of police as per order in 83/1998 to file the report, no such order was produced either along with the final report or even at the time of evidence. In spite of the fact that PW7 was cross examined with regard to the non production of the order as the final report does not disclose that he has been authorised by the Circle Inspector of Police much less by the order in 83/1998 to either verify or investigate or submit a report, it was not produced. If that be the case, it can only be found that PW7 who laid charge is not the competent Abkari Officer authorised to file a final report as provided under S.50 of Abkari Act in the case. Question is what is the consequence of the cognizance taken on that final report submitted by an officer who is not the Abkari Officer authorised to file final report and the subsequent trial. ## 8. In another decision in **Rajan A.N** . v. **State of** Crl.A. No.807/2004 8 **Kerala** [2014 KHC 3698] held that only Abkari Officers, upon whom both power and jurisdiction are vested can file a report. Final report laid by an Abkari Officer having no territorial jurisdiction is illegal. A single Judge of this Court in **Hamsa Koya** v. **State of Kerala** [2015(2) KHC 206] held as follows: “6. There is no dispute with regard to the fact that the Notification, GO MS No.356/67/Rev. Dated 10/081967, issued as SRO No.234/67 was governing the field at the relevant time. Going by this Notification, PWs 5 and 6, being the Excise Inspectors attached to the Excise Circle Office, Tirur, had no jurisdiction to conduct the investigation of the case on hand exercising powers under S.40 to 53 of the Abkari Act. The powers under S.40 to 53 which include the powers of investigation of the case were not given to the Excise Inspectors attached to the Excise Circle Offices as per SRO No. 234/67. The Excise Inspectors attached to the Excise Circle Offices, being the Excise Inspectors of the Excise Department, are given jurisdiction to exercise the powers under S.31, S.32, S.34, S.35, S.38, S.39, S.53 and S.59 of the Abkari Act as per Clause 10 of the Schedule to SRO No.234/67. No other powers had been granted to them under the said Notification. As per Clause8 of the said Schedule, the powers under S.40 to 53 of the Abkari Act which include the powers of investigation and submitting of Final Report after investigation had been given to the Excise Inspectors exercising jurisdiction within the areas for which they Crl.A. No.807/2004 9 are appointed. The occurrence in this case had taken place within the limits of the Excise Range Office, Parappanangadi. Therefore, the Excise Inspector, Excise Range Office, Parappanangadi, can exercise the powers of investigation. Such a power cannot be exercised by an Excise Inspector attached to the Excise Circle Office, Tirur, as such a power is not conferred on him under the Notification issued as SRO No.234/67. But, such a power is conferred on the Excise Inspector appointed in a particular Excise Range Office. In this case, PW1 or PW7, being the Excise Inspectors, Excise Range Office, Parappanangadi, had jurisdiction to exercise the powers of investigation as the occurrence took place within the territorial limits of their jurisdiction. But, PWs 5 and 6, the Excise Inspectors attached to Excise Circle Office, Tirur, had no such jurisdiction going by the Notification issued by the Government. Since the investigation of the case had been conducted by incompetent officers, the Court below had no jurisdiction to take cognizance of the offence alleged in the complaint filed based on such investigation. Consequently, the Court 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 without jurisdiction the Court below, it cannot end either in conviction or in acquittal. The appellant was entitled to be discharged as provided under S.227 of Cr.P.C. Therefore, the conviction and sentence passed by the Court below against the appellant are liable to be set aside. He is entitled to be discharged in this case. 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 Crl.A. No.807/2004 10 by him shall stand cancelled. This appeal is allowed.” In view of the above settled position of law, the Excise Inspector, Koyilandy has no jurisdiction to file a final report in this case, since the offence was detected within the jurisdiction of Perambra Excise Range. Hence the cognizance taken, charge framed, the trial and consequent conviction against the appellant are illegal. In the result, conviction and sentence passed by the Additional District and Sessions Judge, Fast Track (Adhoc-I), Kozhikode u/s.55 (a) of the Abkari Act are set aside and the accused is set at liberty. Accordingly, Criminal Appeal is allowed. **P.D. RAJAN, JUDGE.** acd