The High Court acquitted the appellant, setting aside conviction under Section 55(a) of the Kerala Abkari Act. The court held that investigation by a non-empowered Assistant Sub Inspector rendered the trial void, as cognizance could legally arise only from an Abkari Officer's report.
Conviction and sentence set aside; appellant acquitted and 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
THURSDAY, THE 17TH DAY OF MARCH 2016/27TH PHALGUNA, 1937
CRL.A.NO. 420 OF 2004 (C)
AGAINST THE JUDGMENT IN SC NO.244/2001 OF ADDITIONAL SESSIONS COURT FAST TRACK (ADHOC-II), KOZHIKODE DATED 19-02-2004
APPELLANT(S)/ACCUSED.:
KELAN, S/O.MOOTHARAN, THADAYIL HOUSE, NANMANDA AMSOM DESOM, KOLAYOTHU MALA.
BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.K.B.SAJEESH SRI.P.GOPINATH SRI.C.S.SUNIL SRI.P.R.SREEJITH
RESPONDENT(S)/COMPLAINANT.:
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. N. SURESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
NS
P.D. RAJAN, J.
Crl. Appeal No.420 of 2004 ---------------------------------Dated this the 17th day of March, 2016
J U D G M E N T
This appeal is preferred by the accused against
the conviction and sentence in S.C. No.244 of 2001 of the
Additional Sessions Judge, Fast Track (Adhoc-II), Kozhikode. The charge against the accused is that on 16.10.1999 at 19 hours, the appellant was found in possession of 5 litres of arrack in a plastic can in a shed on the eastern side of Pathipara Granite quarry in Eramanagalam Muttil Panchayath by the Sub Inspector of Police, Balussery. The appellant was arrested and the contraband articles were seized after preparing a mahazar. Reaching at the police station, he registered a crime. After completing investigation, the Assistant Sub Inspector, Balussery laid charge before the Judicial First Class Magistrate Court, Koyilandy. Subsequently, the case was committed to Sessions Court, Kozhikode, from there, it was made over to Additional Sessions Judge, Fast Track (Adhoc-II).
Crl. Appeal No.420 of 2004 2
PW5 and marked Exts.P1 to P9. MO1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. During cross examination of PW4, Ext.D1 was marked. The learned Sessions Judge convicted the accused under Sec.55(a) of the Abkari Act and sentenced him to rigorous imprisonment for two years and fine of Rs.1,00,000/- (Rupees one lakh only), in default of payment of fine, rigorous imprisonment for six months. Being aggrieved by that, the accused preferred this appeal.
Kochumon v. State of Kerala [2010 (3) KLT 471]
which reads as follows:
Crl. Appeal No.420 of 2004 3
“ S.R.O.321/1996 was issued in exercise of the powers conferred by S.4 of the Act by the State Government. 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 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.”
4. This Court in Subash vs. State of Kerala
[2008 (2) KLT 1047] held as follows:
“ None of the provisions in the Abkari Act gives power to any authority to issue such notification. Even Cr.P.C. does not contain any such provision conferring on the Government the power to issue notification conferring power of an officer to any other inferior
Crl. Appeal No.420 of 2004 4
officer under S.36, when only a superior Officer is to exercise power of the officer in charge of a police station. Further when it specifically states that Abkari Officer must be a police officer above the rank of Sub Inspector and that a police officer below the rank of Sub Inspector of Police cannot be termed as the Abkari Officer. Irregularity in investigation is different from lack of power to initiate prosecution. S.50 of the Abkari Act says that as soon as the investigation into the offences under this Act is completed, the Abkari Officer shall forward to the Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with offence on the basis of a report by an officer not authorised under law. The magistrate has no power to take out cognizance of the case on the report of an officer other than an Abkari Officer and it will go to the root of the matter. In this connection we also refer to S.199(1) and S.461(d) of Cr.P.C. An officer other than Abkari Officer as defined in the Act cannot file a report even if investigation is conducted by an Abkari Officer. When a report by a specifically empowered officer is a condition precedent for taking cognizance of an offence, trial on a report by Assistant Sub Inspector of Police is void. Lack of total jurisdiction for taking cognizance of an offence other than specially empowered officer is not an irregularity covered under Chapter XXXV of Cr.P.C.
whether the investigation in this case was conducted by a non empowered officer. PW4 is the detecting officer in this case. His evidence shows that on 16.10.1999 evening,
Crl. Appeal No.420 of 2004 5
while he was the Sub Inspector of Police, Balussery, he got information that the appellant was conducting sale of arrack. At about 19 hours he arrived at the place of occurrence and found the appellant carrying MO1. PW4 intercepted him and detected arrack in it. Appellant was arrested, Ext.P4 is the arrest memo. He also took 375 ml as samples in two bottles and sealed it at the place of occurrence. The independent witnesses present there put their signature in the sample and affixed the label. For that, he prepared Ext.P1 mahazar. Reaching at the police station, he registered a crime and Ext.P5 is the First Information Report. Ext.P6 is the remand report. Analysing the evidence of PW4, it is clear that MO1 was seized from the possession of the appellant. PW1 supported the oral evidence of PW4.
Crl. Appeal No.420 of 2004 6
mahazar. He prepared Ext.P7 forwarding note and Ext.P8 property list. Analysing the evidence, it is clear that the investigation in this case was conducted and final report filed by the Assistant Sub Inspector of Police who is a non empowered officer.
Chandera Police Station and Another [ 2014 (1) KHC
283 ] Para 6 and 7 reads as follows.
“ 6. in the light of the above argument, I have considered whether there is any illegality or irregularity in the finding of the Court below. I have perused a Government notification issued vide SRO No.321/1996 dated 29/03/1996. As per the 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 was designated as Abkari Officers as per S.5 of the Abkari Act, which reads as follows:
“S.R.O. No.321/96.- In exercise of powers conferred by S.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 purpose of S.31, S.32, S.33, S34, S.35, S.38, S.40, S.41, S.42, S.43, S.44, S.45, S.46,
Crl. Appeal No.420 of 2004 7
S.47, S.48, S.49, S.50, S.51, S.52, S.53 and S.59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officer, in the sections aforesaid.
This notification shall come into force with immediate effect.”
“ Abkari Officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under S.4 or 5.'
Government by notification dated 29/03/1996 authorised all Police Officers above the rank of Sub-Inspector of Police to discharge all the duties conferred on an Abkari Officer.”
empowered officer has been mentioned under Sec.50 of the Abkari Act, which reads as follows :
Crl. Appeal No.420 of 2004 8
(2) As soon as investigation into the offences under this Act is completed, the Abkari officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-s.(2) of S.173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).”
It shows that the Magistrate can take cognizance only on the basis of a report filed by the Abakri Officer. The very jurisdiction of the Magistrate to try the case starts from filing of a report under S.173(2) of the Abkari Act by the Abkari Officer. An Abakri Officer is defined under sub.s. (2) of S.3, which reads as follows:
“ Abkari Officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Ss.4 or 5.”
Crl. Appeal No.420 of 2004 9
taken by the Magistrate was illegal and the conviction and sentence passed by the trial court is void.
In the result, conviction and sentence passed by
the Additional Sessions Judge under Sec.55(a) of the Kerala Abkari Act are set aside. The appellant is acquitted and set at liberty.
Sd/-
P.D. RAJAN JUDGE
/ True Copy /
NS/21/03/2016
P.A. To Judge
2 issues framed by the court
Whether the investigation conducted by an Assistant Sub Inspector, a non-empowered officer under Section 50 of the Abkari Act, vitiates the trial and conviction?
Whether a Magistrate's cognizance of an offence filed on a report by a non-empowered officer renders the trial void?
Colour shows how this judgement treated each authority
Saji @ Kochumon v. State of KeralaDistinguished¶24
Saji @ Kochumon v. State of Kerala [2010 (3) KLT 471]
Subash vs. State of KeralaDistinguished¶29
Subash vs. State of Kerala [2008 (2) KLT 1047]
Hasim T.K. v. Assistant Sub inspector, Chandera Police Station and AnotherRelied on¶41
Hasim T.K. v. Assistant Sub inspector, Chandera Police Station and Another [2014 (1) KHC 283]
3 provisions across 1 enactments
KELAN
STATE OF KERALA
P.D. RAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
