The High Court allowed the criminal appeal against conviction and sentence under the Abkari Act. The bench held that the Sub Inspector of Police, Manjeshwar, lacked jurisdiction to investigate an offence in Kumbala, rendering the trial illegal.
Conviction and sentence set aside; appellant 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. 580 of 2005 ( )
AGAINST THE ORDER/JUDGMENT IN SC 408/2004 of ADDL.SESSIONS COURT (ADHOC)-II, KASARGODE DATED 14-03-2004
APPELLANT(S)/ACCUSED:
P.JAYANDA, S/O.KRISHNA BELICHAPPAD, MUTHAPPA NIVAS KANNADIPPARA ROAD, PACHAMBALAM, ICHILAMKODE VILLAGE KASARAGOD DISTRICT.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENT(S)/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
LSN
P.D.RAJAN, J.
Crl.Appeal. No.580 of 2005
Dated this the 27th day of January, 2016
JUDGMENT
This appeal is preferred against the conviction and sentence in S.C 408/04 of the Additional Sessions Judge (Adhoc) II, Kasargod under Section 55(a) of the Abkari Act.
Crl.Appeal. No.580 of 2005 2
any defence evidence. The learned Additional Sessions Judge (Adhoc) II, Kasargod convicted the accused and sentenced to rigorous imprisonment for one year and fine of Rs.1,00,000/- and in default rigorous imprisonment for two months. Being aggrieved by that he preferred this appeal.
notification was issued under Section 4d of the Abkari
Crl.Appeal. No.580 of 2005
3
Act, empowering the Sub Inspector of Police, Manjeshwar to conduct an investigation outside his jurisdiction.
5. This Court in Saji @ Kochumon v. State of
Kerala [2010(3)KLT 471] held as follows:
"When the Magistrate has no jurisdiction to take cognizance of the case on a report filed by a person other than an Abkari Officer as defined under S.50 of the Abkari Act, there is total lack of jurisdiction for taking cognizance of an offence if cognizance is taken on a final report not submitted by an Abkari Officer and it is not an irregularity covered by Chapter XXXV of Code of Criminal Procedure but a total illegality and therefore, the cognizance taken, trial conducted and the conviction and sentence are all illegal". (para 7)
In this context, I have perused the evidence of PW1 who is Detecting Officer in this case. The evidence of PW1 shows that on 10.03.2002, he was Sub Inspector of Police, Kumbala Police Station, at 19.45 hours, he reached at Kannadippara road junction on the Banthiyodu-Permude road. The appellant was found carrying a polythene bag. On seeing the Police party, he became frightened, PW1 intercepted him and questioned.
Crl.Appeal. No.580 of 2005 4
During inspection of the bag, he detected 9 bottles of Original Choice Deluxe Whisky each containing 750ml. Appellant was arrested after preparing Ext.P1 arrest memo and the contraband articles were seized as per Ext.P2 seizure mahazar. He took two bottles as sample which contained the signature of the accused and witnesses and affixed a label. Reaching at the Police Station he registered a crime. Ext.P3 is the F.I.R and further investigation was conducted by Sub Inspector of Police, Manjeshwar. He produced the seized articles on 30.03.2002 and Ext.P4 is the property list. Those article were produced before court, from there, it was forwarded to chemical examiners lab, Ext.P5 is the forwarding note and Ext.P6 is the chemical examination result. As per Ext.P6, the sample contained 42.08% of ethyl alcohol. In cross-examination he admitted that in the near by vicinity no houses and residences were found in that locality. Analysing the evidence it is found that the incident was occurred within his jurisdiction and the investigation was conducted by the Sub Inspector of
Crl.Appeal. No.580 of 2005
5
Police, Manjeshwar.
Crl.Appeal. No.580 of 2005
6
Saji @ Kochumon's case (supra) it was held as follows:
"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. The respective jurisdiction could only be the jurisdiction of that Sub Inspector. It can only be within the territorial limits of his police station". (para. 5)
Analysing the investigation conducted by PW2, the Sub Inspector of Police, Manjeshwar, it shows that he has no authority to investigate a case and file report as directed by the Circle Inspector of Police, Kumbala. Therefore, the charge framed under the trial and conviction against the appellant are illegal and nonest.
Crl.Appeal. No.580 of 2005
7
In the result, conviction and sentence passed
by the Additional Sessions Court, Kasargod in S.C 408/04
is set aside and the appellant is set at liberty.
Appeal is allowed.
Sd/- P.D.RAJAN, Judge
True Copy
P.A to Judge
lsn
3 issues framed by the court
Whether the Sub Inspector of Police of Manjeshwar had jurisdiction to investigate an Abkari offence occurring in Kumbala Police Station.
Whether the conviction and sentence were legal when the investigation was conducted by an officer outside his respective jurisdiction under the Abkari Act.
Whether the appeal against conviction and sentence should be allowed.
Colour shows how this judgement treated each authority
Saji @ Kochumon v. State of KeralaRelied on¶29
Saji @ Kochumon v. State of Kerala [2010(3)KLT 471]
4 provisions across 1 enactments
P.JAYANDA
STATE OF KERALA
P.D.RAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
P.D.RAJAN
Parties & counsel
