The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Palakkad, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo simple imprisonment for one year and to pay a fine of ₹ 1 lakh and, in default of payment of fine, to undergo simple imprisonment for six months. The appellant challenges the conviction and sentence so passed by the court below 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: PW1, the Sub Inspector of Police, Kongad, and his party were on patrol at 5.00 p.m. on 15-07-2003. While so, on getting reliable information that the appellant was selling arrack at Kunduvampadam, PW1 and his party left for that place. Seeing the police party the appellant attempted to flee away with a jerrycan in his hand. But, he was stopped there by the police party. On examination, it was found that the jerrycan contained about one litre of arrack. A glass tumbler was also seen with the appellant. The appellant was arrested by PW1. Ext.P2 is the Arrest Memo. Three samples of 180 ml. each were drawn from the bulk contained in the jerrycan in three 180 ml. bottles. The jerrycan containing the residue, the samples collected and the glass tumbler were seized by PW1 under Ext.P1 Mahazar in the presence of two police constables. Thereafter, PW1 left for Kongad Police Station with the accused, contraband and the records. He reached there at 8.30 p.m. on that day and registered Crime No.168 of 2003 of that Police Station incorporating the offences under Section 55(a) and (i) of the Abkari Act. Ext.P3 is the F.I.R. so registered by PW1. He has produced the contraband along with the samples and the glass tumbler seized, preparing a List of Property through a constable on 18-07-2003 before the court. M.O.1 is the jerrycan and M.O.2 is the glass tumbler. The investigation of the case was taken over by PW5, the Sub Inspector of Police, Hemambika Nagar Police Station, on 16-07-2003. He has prepared Ext.P4 Scene Mahazar in the presence of witnesses. He has questioned the witnesses and recorded their statements. He has submitted the Forwarding Note before the court for sending the samples for Chemical Analysis. Ext.P6 is a copy of the Forwarding Note. Ext.P5 is the Scene Plan prepared by PW4, the Village Officer, Kongad-II. Ext.P7 is the certificate of Chemical Analysis. PW5 completed the investigation and submitted the Final Report before the Judicial First Class Magistrate's Court-II, Palakkad, alleging the offences under Section 55(a) and (i) of the Abkari Act against the appellant. Learned Magistrate, after complying with the necessary legal formalities, committed the case to the Court of Session, Palakkad. The Court of Session made over the case to the Additional Assistant Sessions Court, Palakkad. Later, the Court of Session has withdrawn the case from that court and made it over to the Additional Sessions Court (Adhoc)-I, Palakkad.
4. The court below has framed a charge against the appellant alleging the offences under Section 55(a) and (i) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution has examined PWs.1 to 5 and marked Exts.P1 to P7 and M.Os.1 and 2 on their side. The appellant was questioned under Section 313 of Cr.P.C. He has denied the incriminating circumstances shown against him. The defence has not adduced any evidence. 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. He was not found guilty of the offence under Section 55(i) of the Abkari Act. The appellant was heard on the question of sentence and imposed the sentence on him.
5. Several contentions have been raised by the appellant challenging the conviction and sentence passed by the court below against him. This Court need not go into all those contentions for disposing of this appeal. The investigation of the case was conducted by PW5, the Sub Inspector of Police, Hemambika Nagar Police Station. The occurrence in this case was not within the jurisdiction of PW5. But, it was taken place within the jurisdiction of PW1. The investigation of a case of this nature can be conducted by an Abkari Officer notified under Section 4 of the Abkari Act. S.R.O. No.321/1996 is such a notification issued by the Government of Kerala, which reads as follows:
“S.R.O.No.321/96.-In exercise of the powers conferred by section 4 of the Abkari Act, I 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 purposes of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the sections aforesaid.
This notification shall come into force with immediate effect. (G.O.(P) No.69/96/TD dt.29-3-1996)”
As per this 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 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, 53 and 59 of the Abkari Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers in these Sections. Therefore, a police officer of and above the rank of Sub Inspector of Police appointed as an Abkari Officer can exercise jurisdiction only under his respective jurisdiction. Here, the investigation has been conducted by PW5. He was entitled to exercise jurisdiction only within the territorial limits of Hemambika Nagar Police Station. The Sub Inspector of Police, Hemambika Nagar Police Station, does not have jurisdiction as an Abkari Officer within the territorial limits of Kongad Police Station.
6. A learned Single Judge of this Court in Saji @ Kochumon v. State of Kerala (2010 (3) KLT 471) has considered the scope of appointment of Abkari Officers under S.R.O. No.321/1996 and laid down as follows:
“.......... 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. Therefore, Sub Inspector of Police, Edathwa is the Abkari Officer empowered by the Government to exercise the powers under Ss.31 to 35, 38 and 40 to 53 and 59 of Act. Therefore, the officer who is competent to file a final report as provided under S.50 is only the Abkari Officer namely, Sub Inspector of Police, Edathwa or an officer superior to him.”
In the light of the provisions of S.R.O. No.321/1996 as interpreted by this Court in this ruling, a Sub Inspector of Police authorised to act as Abkari Officer can exercise his jurisdiction only within the territorial limits of his Police Station. Therefore, PW5, the Sub Inspector of Police, Hemambika Nagar Police Station, has exceeded the limits of his jurisdiction by investigating the case on hand which was within the territorial limits of Kongad Police Station. As the investigation was conducted by PW5, an incompetent officer, the court below had no jurisdiction to take cognizance of the offence alleged in the complaint filed based on such investigation. Consequently, the court below could not have framed a charge against the appellant 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 without jurisdiction by the court below, it cannot end either in conviction or in acquittal. The appellant was entitled to be discharged as provided under Section 227 of the Cr.P.C. Therefore, in the case on hand, the conviction and sentence passed against the appellant are liable to be set aside. The appellant is entitled to be discharged in this case.
7. 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