Kerala High Court allowed criminal appeals allowing appellants to go free. The court held the trial and conviction were non est as cognizance was taken on an FIR/report filed by an Assistant S.I., who lacks authority under the Abkari Act; only S.I. or above are empowered officers.
Conviction and sentence set aside; appellants set at liberty.
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.D.RAJAN
WEDNESDAY, THE 27TH DAY OF JANUARY 2016/7TH MAGHA, 1937
CRL.A.No. 1658 of 2004 (A)
AGAINST THE JUDGMENT IN SC 1540/2002 of III ADDL.SESSIIONS COURT KOLLAM DATED 07-09-2004
AGAINST THE JUDGMENT IN CP 188/2000 of J.M.F.C.-II, KOLLAM
APPELLANT(S)/ACCUSED 2 & 3::
BY ADV. SRI.B.MOHANLAL
RESPONDENT/COMPLAINANT::
STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOTTIYAM POLICE, STATION KOLLAM DISTRICT, THROUGH THE, PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.
By PP SRI N SURESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-012016, ALONG WITH CRA. 1294/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.D.RAJAN, J
Crl.A.Nos.1658 of 2004 & 1294 of 2005
Dated 27th January, 2016
JUDGMENT
These appeals are preferred against the conviction and sentence in S.C.No.1540/2002 of III Additional Sessions Judge, Kollam. The appellant in Crl.Appeal No.1294/2005 was the 1st accused and the appellants in Crl.Appeal No.1658/2004 were 2nd and 3rd accused in S.C.No.1540/2002, who were convicted by the Additional Sessions Judge-III, u/s.55(a) of the Abkari Act. The charge against the appellant is that on 29.6.2000 at 5.30 pm, S.I of Police, Kottiyam was conducting patrol duty within his jurisdiction. At that time, he found the first accused carrying 750 ml of arrack in a bottle and the second accused carrying one litre and third accused carrying 350 ml of arrack for sale at the end of Perayam mini colony road at the entrance of Perinkulam Ela. On seeing the police party, they tried to ran away but arrested A2 and A3 from the place of occurrence with arrack. Reaching at police station, they registered a crime and the contraband articles were produced before court. Subsequently A1 surrendered before court. After completing investigation, Assistant S.I of Police, Kottiyam laid charge
CRA 1658/04 & 1294/2005 2
before Judicial First Class Magistrate-II, Kollam. From there the case was committed to Sessions Court, Kollam.
CRA 1658/04 & 1294/2005
3
vitiated.
investigation was conducted by Assistant S.I of Police, who is not an empowered officer. But he contended that the delay is immaterial and it will not affect the credibility of the prosecution case since it was not challenged in the trial court.
CRA 1658/04 & 1294/2005 4
interrogation, they admitted that arrack belongs to A1. He arrested the accused after preparing Ext.P3 and P3(a) arrest memo. He took 200 ml of arrack from each bottle as sample and remaining arrack filled in MO5 kannas. He prepared Ext.P1 mahazar and the witness present there attested Ext.P1. Reaching at the police station, he registered a crime. Ext.P4 is the F.I.R. The material objects were produced before court as per Ext.P5. The samples were also produced before court. Ext.P6 is the report after analysis. PW3 identified A1 before court. During cross examination, he admitted that the investigation was conducted by Assistant S.I.
CRA 1658/04 & 1294/2005 5
questioning PW1, he gave Ext.P2 statement. A close scrutiny of the evidence of PW4 shows that he was not authorised to
conduct an investigation and file a final report before the Magistrate Court for taking cognizance of the offence.
“ In exercise of the powers conferred by Section 4 of the Abkari Act, 1 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.”
6
CRA 1658/04 & 1294/2005
As per the above notification, the Government of Kerala appointed all police officers of the above rank and S.I of Police in charge of law and order and working in the General Executive Branch of the police department is the empowered officer. Therefore, an investigation conducted by any officer below the rank of S.I is an illegality and he has no jurisdiction to file any report. The court below took cognizance of the offence on the basis of the investigation conducted by Assistant S.I and that court cannot frame charge and convict the appellants. Therefore the charge and the trial against the appellants can be treated as non est in the eye of law. Therefore the trial court cannot convict the appellants on the alleged charge.
In the result, the conviction and sentence passed by the trial court under Section 55(a) of the Abkari Act in SC.1540 of 2002 is set aside and appellants are set at liberty. These appeals are allowed.
P.D.RAJAN, JUDGE
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3 issues framed by the court
Whether a Magistrate can take cognizance of an offence under the Abkari Act on the basis of a report filed by an Assistant S.I who is not an empowered officer.
Whether investigation conducted by an Assistant S.I without authority under Section 4 of the Abkari Act vitiated the trial and conviction.
Whether the appeals against conviction under Section 55(a) of the Abkari Act should be allowed due to lack of jurisdiction of investigating officer.
Colour shows how this judgement treated each authority
Subhash V. State of KeralaRelied on¶5
(2008(2) KLT 1047)
3 provisions across 1 enactments
Sajeep, S/o. Basheer
Noushad, S/o. Abdulsalam
State of Kerala
P. D. Rajan
As recorded by the court registry
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