Criminal Appeal against conviction under Section 8(2) of the Abkari Act. Held that conviction quashed due to lack of territorial jurisdiction of investigating officer and unexplained delay in producing material objects.
Appellant acquitted under Section 386(b)(i) Cr.P.C. Appellant set at liberty and old bail bond cancelled; fine refunded.
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 K.HARIPAL
THURSDAY, THE 22ND DAY OF OCTOBER 2020 / 30TH ASWINA, 1942
CRL.A.No.2047 OF 2007
AGAINST THE JUDGMENT IN SC 294/2003 DATED 24-03-2007 OF SESSIONS ADDITIONAL SESSIONS COURT (ADHOC)-III, THALASSERY
CP 173/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KUTHUPARAMBA
APPELLANT/ACCUSED:
TOMY @ TOMYCHAN, S/O. JOSEPH, MUTHALAPRA VEEDU, ATAKKATHODU, KELAKAM AMSOM.
BY ADV. SRI.M.V.AMARESAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY PUBLIC PROSECUTOR SRI.D. CHANDRASEKHAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-10-2020, THE COURT ON 22-10-2020 DELIVERED THE FOLLOWING:
Crl.A.2047/2007 :2:
JUDGMENT
Appellant is the convict in SC No.294/2003 of the Additional Sessions Court-III, Thalassery. The allegation against the appellant precisely is that on 29.08.2001 at about 18:30 hours, CW1 Sub Inspector, Kelakam police station and party found the appellant on the canal bund lane in Adakkathodu - Valumukku area in Kelakam possessing and vending arrack. After intercepting him and seizing the contraband under a mahazar, Crime No.154/2001 was registered. The seizure and arrest were made in the presence of independent witnesses. On the basis of the final report laid by the Sub Inspector, CP No.173/2001 was taken on file by the Judicial First Class Magistrate, Kuthuparamba. After enquiry, since offence punishable under Section 8(2) of the Abkari Act was revealed, triable exclusively by the Court of Session, the learned Magistrate committed the case to the Sessions Court under Section 209 Cr.P.C., where the case was taken on file as SC No.294/2003. Then the case was made over to the trial court for trial and disposal.
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After hearing counsel on both sides, when the charge was framed, read over and explained, he pleaded not guilty and claimed to be tried. He was on bail.
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trial court is justified in convicting and sentencing the appellant under Section 8(2) of the Abkari Act.
Crl.A.2047/2007 :5:
bund or a pathway. According to the learned counsel, all these aspects are highly fatal and capable of doubting the veracity of the prosecution case.
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the item was produced in court it was in his custody. He also proved the forwarding note, marked as Ext.P6, and the chemical examination report, Ext.P7. According to him, the crime was investigated by the S.I. Peravoor, as directed by the Circle Inspector, Peravoor.
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led to the issue of Ext.P7 report stating that the seals on the bottles were intact, found tallying with the sample seal provided and that the items contained 29.71 and 29.63 percentage by volume of ethyl alcohol, respectively.
Crl.A.2047/2007 :8:
jurisdiction of the Circle Inspector, Peravoor. Even assuming that it is so, the Sub Inspector, Peravoor police station has no competency to investigate a crime committed within Kelakam police station limits. Section 3(2) of the Abkari Act defines an Abkari officer meaning the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Section 4 or 5. Powers under Sections 4 and 5 of the Abkari Act can be exercised only by the Government or under the rules framed by the Government. It is not known as to how the Circle Inspector of Police, Peravoor could usurp the powers of the Government and invest jurisdiction on the Sub Inspector, which is alien to the statutory mandate. Even though such an argument has not been raised in the appeal memorandum, it being a question of law, the learned counsel cannot be faulted for raising it for the first time before this Court.
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conducted pursuant to such a final report is non est and illegal. It is a matter going to the very root of the matter. (See the decisions reported in A.N.Rajan v. State of Kerala [2014 (3) KLJ 720], Haridas v. State of Kerala [2015 (1) KLT 958], etc.). In Kunhanna Poojari v. State of Kerala [2019 (4) KHC 292] , it has been made succinctly clear that a Circle Inspector of police has no authority to delegate investigation to another officer, the power of delegation can be made only by the Government under Section 4(g) of the Abkari Act.
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Section 102(3) of the Cr.P.C., every police officer acting under subsection (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the court or where there is difficulty in securing proper accommodation for custody of such property or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the court as and when required and to give effect to the further orders of the court as to the disposal of the same. In other words, the detecting officer is bound to report the seizure to the court forthwith and is entitled to retain the same only in certain contingencies. Here, such a contingency does not exist. The material object is a jerrycan of 5 litres and two bottles containing samples. Of course, the materials produced by the prosecution indicate that seizure of the item was reported to the court on the following day itself. But the samples and the contraband were transmitted to the court only on 06.09.2001. The excuse tendered by
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the Sub Inspector is that he was under pressure of work, meanwhile, it was kept in his safe custody.
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the working of a police station it cannot be believed, unless overwhelming materials are made available, to say that such an item was upkept by him without being accessed by other Station House Officers who held charge of the police station from time to time, or others during the entire period of seven days. The credibility of Ext.P7 report depends upon the fact that the samples were kept in a most safe, tamper-free condition. It is the settled proposition that there must be correlation between the sample and the chemical examination report, which is the backbone of the opinion formed in filing the final report, for indicting the appellant. But such a document cannot be placed implicit reliance since the items were produced only on the seventh day of seizure without any explanation for the delay, that too without convincing materials on its safe custody.
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there is absolutely nothing to go by the solitary evidence of PW3 who has no reason for giving a false testimony against the appellant. At the same time, having regard to the two reasons stated supra, the prosecution cannot said to have proved the case against the appellant. The two reasons stated above are sufficient to displace the prosecution case. Consequently, the appellant is entitled to get an acquittal.
Point is found in favour of the appellant. In reversal of the finding of conviction he is found not guilty and acquitted under Section 386(b)(i) Cr.P.C. He shall be set at liberty, cancelling the bail bond. Fine amount, if any, realised shall be refunded.
Appeal is allowed as above.
Sd/-
K.HARIPAL JUDGE
okb/21.10.2020
//True copy// P.S. to Judge
3 issues framed by the court
Whether the trial court was justified in convicting and sentencing the appellant under Section 8(2) of the Abkari Act.
Whether an investigation and final report by an Abkari officer lacks jurisdiction if the officer does not have territorial jurisdiction over the place of offence.
Whether a significant delay in producing material objects to the court without explanation vitiates the conviction.
Colour shows how this judgement treated each authority
8 provisions across 2 enactments
Tomy @ Tomychan
State of Kerala
K. Haripal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
