Allowed

Rajappan v. State of Kerala

Kerala HC18 Jan 2016CRL.A/1846/2004

Case brief

AI extract

What is this about?

In an appeal against conviction under the Abkari Act, the High Court of Kerala held that the investigation was illegal. The Court ruled that the investigating officer, a Sub Inspector of Police, acted outside his territorial jurisdiction, which was not validly delegated to him. Consequently, the conviction and sentence were set aside, and the appellant was acquitted.

What did the court decide?

Conviction and sentence under Sections 8(1) & (2) of the Abkari Act set aside; appellant acquitted.

Rajappan Vs State of Kerala — Cheque Dishonour | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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MONDAY, THE 18TH DAY OF JANUARY 2016/28TH POUSHA, 1937

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CRL.A.No. 1846 of 2004 ( )

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AGAINST THE JUDGMENT IN SC 407/2003 of ADDITIONAL DISTRICT &SESSIONS JUDGE(ADHOC), COURT-1, PATHANAMTHITTA DATED 26.10.2004 (C.P.108/2002 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT, THIRUVALLA)

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APPELLANT(S)/ACCUSED:

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RAJAPPAN S/O. KUNJUKUNJU, KIDARAKUZHIYIL, KULATHOOR, PAYYAMATTOM, KOTTANGAL MURI, KOTTANGAL VILLAGE.

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BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY

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THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI. N. SURESH.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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'C.R.'

P.D. RAJAN, J.

Crl.Appeal No.1846 of 2004

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---------------------------------------------Dated this the 18^th day of January, 2016

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JUDGMENT

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This appeal is directed against the conviction in

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S.C.No.407/2003 of the Additional District and Sessions

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Judge (Adhoc) Court-I, Pathanamthitta u/s.8(1) and (2) of the Abkari Act. The charge against the accused is that on 11.7.2001 at 6.10 p.m., the accused was found in possession of

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two litres of arrack by the side of the road near Elanthottam junction in Kottangal-Padimon public road. The appellant was

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arrested and seized the arrack, thereafter registered a case. The investigation was conducted by the Sub Inspector of Police, Keezhvaipure, subsequently Sub Inspector of Police, Perumpetty laid charge before Judicial First Class

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Crl.Appeal No.1846/2004 2

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Magistrate Court, Thiruvalla, from there it was

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committed to Sessions Court, Pathanamthitta.

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During trial, prosecution examined six

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witnesses and marked Exts.P1 to P9 as documentary evidence. MO1 and MO2 were admitted as material objects. The incriminating circumstances brought out in

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evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted him and sentenced to rigorous imprisonment for two years and fine of 1 lakh, in default simple imprisonment for two₹ years. Being aggrieved by that, he preferred this appeal.

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Heard both sides. The learned counsel

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appearing for the appellant contended that the investigation was conducted by the Sub Inspector of Police, Keezhvaipure, who had no territorial jurisdiction

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Crl.Appeal No.1846/2004 3

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to enter within the jurisdiction of perumpetty Police

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Station to conduct an investigation. The materials collected by the non-empowered officer cannot be taken in the trial of an abkari offence. The investigation in this case can be conducted by an Abkari Officer notified u/s.4 of the Abkari Act. The Circle Inspector has no power to delegate any power by violating the notification

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issued by the Government.

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The learned Public Prosecutor contended that

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the empowered officer can conduct investigation by invoking general powers conferred under Cr.P.C. The Sub Inspector of Police in charge of law and order of another police station is also a competent police officer

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to conduct the investigation.

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The main duty of the officers of the Excise

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Department is the prevention and detection of crimes.

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Crl.Appeal No.1846/2004

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If offences are not detected and prevented, it will

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create various legal issues in the society. Therefore, various ranks of excise officers empowered by the Government are familiarized with powers to prevent such offences. According to Section 3(2) of the Abkari Act, an “Abkari Officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Section 4 or 5. According to Section 3(6), “Abkari Inspector” means an officer appointed under Section 4 (d) of the Abkari Act. According to Section 4(d) of the Abkari Act, the Government may appoint officers to perform the acts and duties mentioned under Sections 40 to 53. As per SRO 321/96 dated 29.3.1996, in exercise of powers conferred by section 4 of the Abkari Act I of 1077, the Government of Kerala have appointed all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the

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Crl.Appeal No.1846/2004 5

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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 purpose of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52,

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53 and 59 of the Act and to exercise all the powers and

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to discharge all the duties conferred and imposed on Abkari Officers, in the sections aforesaid. As per Section 50, report of Abkari Officer gives jurisdiction to a competent Magistrate. Every investigation into the offence under this Act shall be completed without unnecessary delay. As soon as the investigation into the offence under this Act is completed, the Abkari Officer shall forward a report to the Magistrate empowered to take cognizance of the offence on a police report and that report shall be in accordance with sub section (2) of

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Crl.Appeal No.1846/2004

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Section 173 of Code of Criminal Procedure, 1973.

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The Sub Inspector of Police, Perumpetty

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detected the offence who was examined as PW6 in the

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trial Court. His evidence shows that on 11.7.2001, he was conducting patrol duty within his jurisdiction and reached at Kottangal junction, he got information that the appellant was conducting sale of arrack. Immediately, he arrived at the place of occurrence and

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the appellant was found carrying MO1 cannas and MO2

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glass, on seeing the Police party, he abandoned MO1 and

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MO2 and ran away. PW6 identified it as arrack and after taking sample, he sealed it at the place of occurrence. He also affixed the label on it. He

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prepared Ext.P1 mahazar and the independent witness present there attested it, reaching at the police station, he registered a crime and Ext.P6 is the FIR, Ext.P7 is

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Crl.Appeal No.1846/2004 7

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the property list. The sample was produced before

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Court for sending it to the chemical examiner's laboratory and Ext.P9 is the chemical examiner's report, in which 32.58% of ethyl alcohol was detected in the sample. PW3, the Police Constable, who was present at the time of detection of the offence, supported the evidence of PW6. PW1 and PW2 attested Ext.P1 mahazar. PW2 identified MO1 and MO2. Analysing the oral evidence of these witnesses, it is clear that PW6, who is the S.I. of Police, exercised his powers as per SRO No.321/1996 dated 29/3/1996 issued by the Government under Section 4(e) of the Abkari Act.

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The investigation was conducted by PW4, the

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Sub Inspector of Police, Keezhvaipure, who has no territorial jurisdiction to conduct investigation in this case. His evidence shows that as per the direction of

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C.I. of Police, Mallappally, PW4 conducted investigation in

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this case. He arrived at the place of occurrence, questioned the witnesses and recorded their statements. He admitted that PW1 and PW2 gave Exts.P2 and P3 statements. PW5 verified the investigation and laid charge before Court. Ext.P4 is the arrest memo and Ext.P5 is the remand application. Therefore, the investigation conducted by PW4 is illegal and he has no jurisdiction to enter the jurisdiction of Perumpetty Police Station limit without a notification issued u/s.4(d) and 4(e) of the Abkari Act conferring power by Government. S.70 of the Abkari Act is specific about conferring power, it reads as follows:

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“The conferring of powers and making of appointments:All notification and orders conferring powers, imposing duties and making appointments under this 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.”

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Therefore, in the absence of any delegation of power or

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any notification, Circle Inspector has no power to direct

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a Sub Inspector of Police to conduct investigation

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outside his territorial jurisdiction.

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The impact of investigation by Sub Inspector outside the territorial jurisdiction has been discussed by

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this Court in Saji @ Kochumon v. State of Kerala [2010 (3)

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KLT 471] and held as follows:

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“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

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Crl.Appeal No.1846/2004

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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.

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9 A Single Judge of this Court in Narayanankutty

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v. State of Kerala [2015 (1) KHC 702] held that the

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investigation of an Abkari case can be conducted by an abkari officer notified under the Abkari Act. As per the notification SRO No.321/1996 the Sub Inspector of Police in charge of law and order, working in the general executive branch of the Police Department is authorised to act as Abakri Officer and he can exercise his jurisdiction only within the territorial limits of his police station.

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In this case, the investigation had been

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conducted by PW4, who was the Sub Inspector of Police,

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Keezhvaipure. He can exercise his jurisdiction within the territorial limits of Keezhvaipure police station alone and he cannot investigate an Abkari crime within the local jurisdiction of Perumpetty police station which is outside his jurisdiction. The Sub Inspector, Keezhvaipure Police Station exceeded his limits of jurisdiction and violated the provisions of the notification issued under SRO No.321/1996. Therefore, the trial conducted on the

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basis of those documents must be treated as non est in the eye of law as it was done without jurisdiction.

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In the result, the conviction and sentence passed by

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the Additional Sessions Judge (Adhoc) Court-I, Pathanamthitta u/s.8(1) & (2) are set aside and the appellant is acquitted thereunder .

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P.D. RAJAN, JUDGE.

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acd

Rajappan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Rajappan v. State of Kerala

Case brief

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What did the court decide?

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