The appellant was convicted by the Additional Sessions Court (Adhoc)II, Alappuzha, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of ₹ 1 lakh and, in default of payment of fine, to undergo rigorous imprisonment for three months. The conviction and sentence so passed by the court below are challenged in this appeal.
2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent.
3. The case of the prosecution is briefly stated as follows: PW3, the Assistant Excise Inspector, Excise Range office, Alappuzha, and his party were on patrol at about 6.00 p.m. on 17-11-1999 near Sreekrishnaswamy Temple, Ambalapuzha. While so, the appellant was seen coming with a 10 litre jerrycan. Seeing the excise party, he attempted to flee away from the scene. But, he was stopped there by the excise party and examined the contents of the jerrycan. Then, it was found that it contained 7.5 litres of arrack. Therefore, the appellant was arrested by PW3 then and there and a sample of 200 ml. of arrack was taken in a 375 ml. bottle from the bulk. Both the jerrycan and the sample were sealed and seized under Ext.P1 Seizure Mahazar in the presence of PWs.1, 2 and 4. Thereafter, PW3 proceeded to the Excise Range Office, Alappuzha, along with the appellant and the contraband articles and prepared Ext.P2 crime and occurrence report. The investigation of the case was conducted by PW5, the Excise Inspector, Alappuzha, and he had submitted the Final Report before the court.
4. The court below had taken cognizance of the offence under Section 55(a) of the Abkari Act. A charge alleging the offence under Section 55(a) of the Abkari Act was framed against the appellant. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P4 and M.O.1 on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. No evidence was adduced by the defence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder and, after hearing him on the question of sentence, imposed the sentence on him.
5. The appellant has raised several contentions in this appeal challenging the conviction and sentence passed by the court below. But, at the hearing, the contention raised by the learned counsel for the appellant is that PW3, the Assistant Excise Inspector, was an incompetent officer to detect the offence, arrest the appellant and seize the contraband articles. He has relied on S.R.O. No.234/1967 issued by the Government of Kerala under the Abkari Act empowering various officers to act in accordance with various provisions of the Abkari Act and the rulings of this Court in Subrahmaniyan v. State of Kerala (2010 (2) KLT 470) and in Sasidharan v. State of Kerala (2012 (2) KLT 392) and contended that as on 17-11-1999, the Assistant Excise Inspector was not a competent officer to detect the offence, arrest the accused and seize the contraband articles as he was not a notified officer under S.R.O. No.234/1967. He further contends that the Assistant Excise Inspector was empowered as an Abkari Officer only as per S.R.O. No.361/2009 dated 08-05-2009. On a perusal of S.R.O. No.234/1967 and the rulings cited, this Court is satisfied that as on 17-11-1999, the Assistant Excise Inspector, Excise Range Office, Alappuzha, was not a competent officer to detect, arrest and effect seizure as contended by the learned counsel for the appellant. Therefore, the court below had no jurisdiction to take cognizance of the offence alleged in the complaint filed based on such detection, arrest and seizure. Consequently, the court below could not have framed charge against the accused as it was without jurisdiction. The trial which followed after framing the charge must be treated as non est in the eye of law as it was done without jurisdiction. As the trial was conducted in this case without jurisdiction by the court below, it cannot end in either conviction or acquittal. The accused was entitled to be discharged as provided under Section 227 of Cr.P.C. Therefore, the conviction and sentence passed against the appellant are liable to be set aside. The appellant is entitled to be discharged in the case.
6. In the result, the conviction and sentence passed by the court below against the appellant/accused are set aside. The appellant/accused is discharged. He is set at liberty. The bail bond executed by him shall stand cancelled.
This appeal is allowed.
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BABU MATHEW P. JOSEPH JUDGE //TRUE COPY// P.A. TO JUDGE