Kerala High Court
Kelan vs State Of Kerala on 19 February, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
THURSDAY, THE 17TH DAY OF MARCH 2016/27TH PHALGUNA, 1937
CRL.A.NO. 420 OF 2004 (C)
--------------------------
AGAINST THE JUDGMENT IN SC NO.244/2001 OF ADDITIONAL SESSIONS COURT
FAST TRACK (ADHOC-II), KOZHIKODE DATED 19-02-2004
----------------------
APPELLANT(S)/ACCUSED.:
---------------------
KELAN, S/O.MOOTHARAN,
THADAYIL HOUSE, NANMANDA AMSOM DESOM,
KOLAYOTHU MALA.
BY ADVS.SRI.P.S.SREEDHARAN PILLAI
SRI.K.B.SAJEESH
SRI.P.GOPINATH
SRI.C.S.SUNIL
SRI.P.R.SREEJITH
RESPONDENT(S)/COMPLAINANT.:
---------------------------
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. N. SURESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-03-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
NS
P.D. RAJAN, J.
--------------------------------
Crl. Appeal No.420 of 2004
----------------------------------
Dated this the 17th day of March, 2016
J U D G M E N T
This appeal is preferred by the accused against the conviction and sentence in S.C. No.244 of 2001 of the Additional Sessions Judge, Fast Track (Adhoc-II), Kozhikode. The charge against the accused is that on 16.10.1999 at 19 hours, the appellant was found in possession of 5 litres of arrack in a plastic can in a shed on the eastern side of Pathipara Granite quarry in Eramanagalam Muttil Panchayath by the Sub Inspector of Police, Balussery. The appellant was arrested and the contraband articles were seized after preparing a mahazar. Reaching at the police station, he registered a crime. After completing investigation, the Assistant Sub Inspector, Balussery laid charge before the Judicial First Class Magistrate Court, Koyilandy. Subsequently, the case was committed to Sessions Court, Kozhikode, from there, it was made over to Additional Sessions Judge, Fast Track (Adhoc-II).
Crl. Appeal No.420 of 2004 2
2. During trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P9. MO1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. During cross examination of PW4, Ext.D1 was marked. The learned Sessions Judge convicted the accused under Sec.55(a) of the Abkari Act and sentenced him to rigorous imprisonment for two years and fine of Rs.1,00,000/- (Rupees one lakh only), in default of payment of fine, rigorous imprisonment for six months. Being aggrieved by that, the accused preferred this appeal.
3. Heard both sides. The main contention advanced by the learned counsel for the appellant is that the investigation was conducted by the Assistant Sub Inspector, who is a non empowered officer to investigate that crime. The competency of investigation by Assistant Sub Inspector has been explained by this Court in Saji @ Kochumon v. State of Kerala [2010 (3) KLT 471] which reads as follows:
Crl. Appeal No.420 of 2004 3
" 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."
4. This Court in Subash vs. State of Kerala [2008 (2) KLT 1047] held as follows:
" None of the provisions in the Abkari Act gives power to any authority to issue such notification. Even Cr.P.C. does not contain any such provision conferring on the Government the power to issue notification conferring power of an officer to any other inferior Crl. Appeal No.420 of 2004 4 officer under S.36, when only a superior Officer is to exercise power of the officer in charge of a police station. Further when it specifically states that Abkari Officer must be a police officer above the rank of Sub Inspector and that a police officer below the rank of Sub Inspector of Police cannot be termed as the Abkari Officer. Irregularity in investigation is different from lack of power to initiate prosecution. S.50 of the Abkari Act says that as soon as the investigation into the offences under this Act is completed, the Abkari Officer shall forward to the Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with offence on the basis of a report by an officer not authorised under law. The magistrate has no power to take out cognizance of the case on the report of an officer other than an Abkari Officer and it will go to the root of the matter. In this connection we also refer to S.199(1) and S.461(d) of Cr.P.C. An officer other than Abkari Officer as defined in the Act cannot file a report even if investigation is conducted by an Abkari Officer. When a report by a specifically empowered officer is a condition precedent for taking cognizance of an offence, trial on a report by Assistant Sub Inspector of Police is void. Lack of total jurisdiction for taking cognizance of an offence other than specially empowered officer is not an irregularity covered under Chapter XXXV of Cr.P.C.
5. In the circumstance, I have considered whether the investigation in this case was conducted by a non empowered officer. PW4 is the detecting officer in this case. His evidence shows that on 16.10.1999 evening, Crl. Appeal No.420 of 2004 5 while he was the Sub Inspector of Police, Balussery, he got information that the appellant was conducting sale of arrack. At about 19 hours he arrived at the place of occurrence and found the appellant carrying MO1. PW4 intercepted him and detected arrack in it. Appellant was arrested, Ext.P4 is the arrest memo. He also took 375 ml as samples in two bottles and sealed it at the place of occurrence. The independent witnesses present there put their signature in the sample and affixed the label. For that, he prepared Ext.P1 mahazar. Reaching at the police station, he registered a crime and Ext.P5 is the First Information Report. Ext.P6 is the remand report. Analysing the evidence of PW4, it is clear that MO1 was seized from the possession of the appellant. PW1 supported the oral evidence of PW4.
6. The independent witness PW2 did not support the prosecution case. But, he admitted the signature in Ext.P1. PW3 admitted his signature in Ext.P3. But the investigation was conducted by PW5 Assistant Sub Inspector. His evidence shows that he arrived at the place of occurrence and prepared Ext.P3 Crl. Appeal No.420 of 2004 6 mahazar. He prepared Ext.P7 forwarding note and Ext.P8 property list. Analysing the evidence, it is clear that the investigation in this case was conducted and final report filed by the Assistant Sub Inspector of Police who is a non empowered officer.
7. In Hasim T.K. v. Assistant Sub inspector, Chandera Police Station and Another [2014 (1) KHC 283 ] Para 6 and 7 reads as follows.
" 6. in the light of the above argument, I have considered whether there is any illegality or irregularity in the finding of the Court below. I have perused a Government notification issued vide SRO No.321/1996 dated 29/03/1996. As per the 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 was designated as Abkari Officers as per S.5 of the Abkari Act, which reads as follows:
"S.R.O. No.321/96.- In exercise of powers conferred by S.4 of the Abkari Act, (1 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 purpose of S.31, S.32, S.33, S34, S.35, S.38, S.40, S.41, S.42, S.43, S.44, S.45, S.46, Crl. Appeal No.420 of 2004 7 S.47, S.48, S.49, S.50, S.51, S.52, S.53 and S.59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officer, in the sections aforesaid.
This notification shall come into force with immediate effect."
7. The report of Abkari officer under S.50 of the Abkari Act confer jurisdiction to a competent Magistrate to take cognizance. According to S.50(1), every investigation into the offence under this Act shall be completed without unnecessary delay and S.50(2) says as soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward it to a Magistrate, empowered to take cognizance of the offence on a police report, which is a report in accordance with sub-section(2) of S.173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974). A close reading of the Section shows that the Magistrate can take cognizance only on the basis of a report filed by the Abkari Officer. An Abkari Officer is defined under sub-section (2) of S.3, which reads as follows:
" Abkari Officer" means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under S.4 or 5.' Government by notification dated 29/03/1996 authorised all Police Officers above the rank of Sub-Inspector of Police to discharge all the duties conferred on an Abkari Officer."
8. The impact of the report submitted by a non empowered officer has been mentioned under Sec.50 of the Abkari Act, which reads as follows :
Crl. Appeal No.420 of 2004 8
"S.50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-
(1) Every investigation into the offence under this Act shall be completed without unnecessary delay. (2) As soon as investigation into the offences under this Act is completed, the Abkari officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-s.(2) of S.173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974)."
It shows that the Magistrate can take cognizance only on the basis of a report filed by the Abakri Officer. The very jurisdiction of the Magistrate to try the case starts from filing of a report under S.173(2) of the Abkari Act by the Abkari Officer. An Abakri Officer is defined under sub.s. (2) of S.3, which reads as follows:
" Abkari Officer" means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Ss.4 or 5."
9. Therefore, it is clear that Magistrate can take cognizance of an offence only on the basis of the report submitted by an abkari officer. The very jurisdiction of the Magistrate to try the case starts from the filing of the report under Sec.50 of the Abkari Act. Here, the learned Magistrate took cognizance of the offence on the basis of report filed by the Assistant Sub Inspector who is a non empowered officer. Therefore, cognizance of the offence Crl. Appeal No.420 of 2004 9 taken by the Magistrate was illegal and the conviction and sentence passed by the trial court is void.
In the result, conviction and sentence passed by the Additional Sessions Judge under Sec.55(a) of the Kerala Abkari Act are set aside. The appellant is acquitted and set at liberty.
Sd/-
P.D. RAJAN
JUDGE
/ True Copy /
NS/21/03/2016 P.A. To Judge