The appellant was convicted by the II Additional Assistant Sessions Court, Kozhikode, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo simple imprisonment for two years and to pay a fine of ₹ 1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for three months. The appellant challenges the conviction and sentence so passed by the court below against him 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: On getting secret information that the appellant was selling arrack in front of his house, PW3, the Sub Inspector of Police, Thamarasseri Police Station, and his party left for that place at 6.15 p.m. on 22-11-2002. The police party reached in front of the house of the appellant at 6.35 p.m. on that day. Seeing the police party, the appellant attempted to flee away. But, he was stopped by the police party. His body was searched when a 500 ml. plastic bottle containing 400 ml. of arrack and a glass tumbler were seen at his loin beneath the dhoti. PW3 arrested the appellant at 6.45 p.m. Ext.P2 is the arrest memo and Ext.P3 is the inspection memo prepared by PW3 in the presence of witnesses. Since the arrack detected was only a small quantity, the entire quantity of arrack found was treated to be sample. The bottle containing arrack was sealed and labelled and seized the same at 6.50 p.m. in the presence of witnesses. Thereafter, PW3 reached Thamarasseri Police Station along with the accused and the contraband and registered Crime No.333 of 2002 of that Police Station. Ext.P4 is the FIR thus prepared by PW3. The accused and the contraband were produced before the court on the next day.
4. The investigation of the case was conducted by PW5, the Sub Inspector of Police, Kodencherry Police Station. He went to the scene place and prepared Ext.P7 scene mahazar at 10 a.m. on 23.11.2002 in the presence of witnesses. He has questioned the witnesses and recorded their statements. PW6, the Sub Inspector of Police, Thamarassery Police Station, completed the investigation and submitted Final Report before the Judicial First Class Magistrate's Court-I, Thamarassery. The learned Magistrate committed the case to the Court of Session, Kozhikode, and, from there, made over the same to II Additional Assistant Sessions Court, Kozhikode. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act.
5. The prosecution has examined PWs.1 to 6 and marked Exts.P1 to P9 and MO.1 on their side. The defence has not examined any witness. Ext.D1 was marked on the side of 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. The appellant was heard on the question of sentence and imposed the sentence.
6. Several contentions have been raised by the appellant challenging the conviction entered and the sentence passed 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, Kodencherry Police Station. The occurrence in this case has not taken place within the jurisdiction of PW5. But, it has taken place within the jurisdiction of PWs.3 and 6, both were Sub Inspectors of Police, Thamarassery Police Station. The investigation of a case of this nature can be conducted by an Abkari Officer notified under Section 4 of the Abkari Act. Such a notification has been issued by the Government of Kerala which is S.R.O.No.321/96. It 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 the sections aforesaid. Therefore, a police officer of and above the rank of Sub Inspector of Police appointed as an Abkari Officer can exercise jurisdiction as Abkari Officer 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 Kodencherry Police Station. The Sub Inspector of Police, Kodencherry Police Station, does not have jurisdiction as an Abkari Officer within the territorial limits of Thamarassery Police Station. The occurrence in this case took place within the limits of Thamarassery Police Station.
7. A learned single Judge of this Court in Saji @ Kochumon v. State of Kerala(2010(3)KLT 471) considered the scope of appointment of Abkari Officers under S.R.O.No.321 of 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 of 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, Kodencherry Police Station, has exceeded the limits of his jurisdiction by investigating the case on hand which was within the territorial limits of Thamarassery 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 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 without jurisdiction by the court below, it cannot end either in conviction or in acquittal. The accused was entitled to be discharged as provided under Section 227 of 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.
8. 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.
ks.
Sd/-
BABU MATHEW P. JOSEPH JUDGE True copy P.S.To Judge
2010 (3) KLT 471
Hon'ble Mr. Justice M. Sasidharan Nambiar
Saji @ Kochumon v. State of Kerala
Crl. R.P. No.392 of 2002 Decided on 25th May, 2010 Abkari Act 1077 (Kerala), Ss. 4, 50 & 55 - A Sub Inspector of Police authorised to act as Abkari Officer, can exercise his jurisdiction only within the territorial limits of his Police Station - Final report laid by another Sub Inspector is illegal.
Summary
Questions raised are:
(i) A Sub Inspector of Police authorised to act as Abkari Officer, if can exercise his jurisdiction only within the territorial limits of his Police Station ?
(ii) Whether Magistrate has jurisdiction to take cognizance of case on a report filed by a person other than an Abkari Officer. Cognizance taken, trial conducted, sentence and conviction if illegal ?
Accused arrested and illicit arrack seized within jurisdiction of Edathwa Police Station by PW1 S.I. of Police. F.I.R. was prepared and case was registered in Edathwa Police Station but final report not submitted by S.I. of Edathwa Police Station but by PW7 who is S.I. of Police, Veeyapuram Police Station. It is argued that under S.50 S.I. Veeyapuram is not competent to file a final report in respect of an offence committed within jurisdiction of Edathwa Police Station. State contends that under S.R.O. 321/96 all Sub Inspectors of Police are Abkari Officers and final report filed by Abkari Officer is not bad.
High Court acquitting accused held that a S.I. of Police is appointed as 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.