Criminal appeal against conviction under the Abkari Act. The High Court held that the investigation officer was incompetent to act as an abkari officer, rendering the trial a nullity. The appeal was allowed, conviction set aside, and accused acquitted.
Conviction and sentence set aside; accused acquitted and set at liberty with bail bond cancelled.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
MONDAY, THE 16TH DAY OF NOVEMBER 2015/25TH KARTHIKA, 1937
CRL.A.No. 965 of 2006
AGAINST THE JUDGMENT IN SC 289/2005 of ADDL.SESSIONS COURT (ADHOC)-II, THODUPUZHA DATED 05.05.2006
APPELLANT/ACCUSED:
JAYARAMAN @ JAYAN, S/O.VELU, CHERUKUZHIYIL VEEDU, ANACHAL KARA, KUNCHITHANNY VILLAGE.
BY ADV. SRI.S.RAJEEV
RESPONDENT/RESPONDENT:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA (CRIME 338/2001 OF VELLATHOOVAL POLICE STATION)
BY SMT. S. HYMA, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.BHAVADASAN, J.
Crl. Appeal No.965 OF 2006
Dated this the 16th day of November, 2015.
J U D G M E N T
The accused who faced prosecution for the offence under Section 55(a) of Abkari Act was found guilty for the offence under Section 55(i) of Abkari Act and was therefore convicted and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.1 lakh with default clause of rigorous imprisonment for three months.
Crl. Appeal No.965/2006
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taste and smell, it was confirmed that it is Indian Made Foreign Liquor. Accused was arrested on the spot and Ext.P1 mahazar
was prepared. In the sample taken by him, he had the label affixed containing the signature of the accused and the witnesses. He returned to the station and registered Crime No.338/2001 as per Ext.P3 First Information Report. He registered the case on suo moto. On the next day, he had the accused, articles and records entrusted to Sub Inspector of Police attached to the station.
3
Crl. Appeal No.965/2006
Cr.P.C after following requisite procedures. The said court made over the case to Additional Sessions Court (Adhoc)-II, Thodupuzha for trial and disposal. The latter court, on receipt of records and on appearance of the accused, framed charge for the offence under Section 55(a) of Abkari Act. To the charge, accused pleaded not guilty and claimed to be tried.
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chose to adduce no evidence.
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“6. P.W.5 deposed before the court that he had conducted the investigation of the case as directed by the Assistant Excise Commissioner, Pathanamthitta. The Assistant Excise Commissioner had no authority to empower P.W.5 to conduct the investigation of the case. Such power must be conferred on P.W.5 by a notification issued by the Government of Kerala under S.4 of the Abkari Act. In the absence of such a notification, the investigation conducted by P.W.5 cannot be accepted to be a legal one even if it was done as directed by the Assistant Excise Commissioner, Pathanamthitta.
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on such investigation. Consequently, 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 without jurisdiction by the court below, it cannot end either in conviction or in acquittal. 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.”
For the above reasons, this appeal is allowed. The conviction and sentence passed by the court below are set aside and it is held that the accused is not guilty of the offence. He stands acquitted of the charges levelled against him. His bail
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bond shall stand cancelled and he is set at liberty. If any amount is deposited as per the orders of the court, the same shall be
refunded on proper application.
Sd/-
P.BHAVADASAN JUDGE
smp
// True Copy //
P.A to Judge.
1 issue framed by the court
Whether conviction and sentence are maintainable where the investigation was conducted by an assistant sub inspector of police who lacked authority to act as an abkari officer.
Colour shows how this judgement treated each authority
Haridas vs. State of Kerala (2015 (1) KLT 958)Explained¶12
Jayaraman @ Jayan
State of Kerala
P.Bhavadasan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
