Kerala High Court
A N Rajan vs State Of Kerala on 5 February, 2013
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
MONDAY, THE 18TH DAY OF FEBRUARY 2013/29TH MAGHA 1934
CRL.A.No. 194 of 2013 ()
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SC.128/2008 of ADDL. SESSIONS JUDGE (ADHOC)-II, KALPETTA
DATED 05-02-2013
APPELLANT(S)/ACCUSED NO.1:
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A N RAJAN, AGED 46 YEARS
S/O NARAYANAN, ANCHANIKKAL(H), EDANADU DESOM
VELLICHIRA VILLAGE, MEENACHIL TALUK, KOTTAYAMDISTRICT.
BY ADV. SRI.MATHEW KURIAKOSE
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA,
(CRIME NO.102/2006 OF SULTHAN BATHERY EXCISE RANGE)
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR ADV.SMT.V.H.JASMINE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-02-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
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Crl.A.No.194 of 2013
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Dated this the 18th day of February, 2013.
J U D G M E N T
The first accused in S.C.No.128 of 2008 on the file of the court of Additional Sessions Judge (Ad hoc)-II, Kalpetta, is the appellant. He preferred this appeal challenging the judgment dated 5.2.2013 of the said court by which he is convicted and sentenced for the offence under section 55(a) of the Abkari Act.
2. The case of the prosecution is that on 17.12.2006 at about 6.10 a.m. at Muthanga Excise Check post, the appellant who is A1 was found transporting 540 ltrs. of rectified spirit in the Maruthi Versa car bearing registration No.TN-09AC-2457 owned by A2, from the State of Karnataka to Kerala. Thus, the accused has committed the offence punishable under section 55(a) and 61 of the Kerala Abkari Act. Based upon the above allegation, crime 2 Crl.A.No.194 of 2013 No.102 of 2006 was registered in the Sulthan Bathery Excise Range for the said offences. On completing the investigation, a report was filed in the court of Judicial First Class Magistrate-I, Sulthan Bathery and the learned Magistrate after compliance of section 207 of Cr.P.C., committed the case to the Sessions court as per his order dated 14.2.2008 in C.P.No.67 of 2007 and on receipt of this committal proceedings, S.C.No.128 of 2008 was instituted in the Sessions Court and subsequently made over to the present trial court for disposal. Thus, when the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed against A1 under section 55(a) of the Abkari Act and against A2 for the offence punishable under section 61 r/w 55(a) of the Abkari Act. When the said charge read over to them and explained, they denied the charge and pleaded not guilty. Consequently, the trial was proceeded further, during which Pws.1 to 8 were examined and Exts.P1 to P9 were 3 Crl.A.No.194 of 2013 marked from the side of the prosecution. M.O.1 mobile phone was also identified as material object. From the side of the defence, DW1 was examined and Ext.D1 was also marked.
3. The trial court finally found that there is sufficient evidence before the court to hold that A1 was found transporting spirit in a Maruti Versa car at Muthanga check post and accordingly he is convicted for the offence under section 55(a) of the Abkari Act. Whereas, it is found that no criminal liability can be raised upon A2 for the reason that he was the registered owner of the vehicle who sold the same to A1. Accordingly, the 2nd accused is acquitted. On such conviction of A1, he is sentenced to undergo rigorous imprisonment for a period of 5 years and to pay fine `5 lakhs and in default he is directed to undergo simple imprisonment for a period of one year. Set off was allowed. It is the above finding and order of conviction challenged in this appeal at the instance of A1.
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4. I have heard Adv.Sri.Mathew Kuriakose, learned counsel for the appellant and the learned Public Prosecutor.
5. Among the prosecution witnesses, PW1 was the then Excise Inspector who is in charge of check post at Muthanga, who detected the crime. During the examination of PW1, Ext.P1 arrest memo and Ext.P2 seizure mahazar were marked through him. PW2 is the then Preventive officer who present at the time of detection of crime. PW3 was working as a mobile mechanic who inspected the vehicle but he turned hostile. PW4 is an independent witness who was an attestor to Ext.P2 seizure mahazar. When PW4 was examined, he supported the prosecution case. Whereas, PW5 another independent witness, who is also an attestor to Ext.P2 seizure mahazar, when examined, turned hostile to the prosecution. PW6 is the then Assistant Excise Inspector attached to Sulthan Bathery Excise Range and when he was examined, Ext.P3 crime and occurrence report, Ext.P4 property list and Ext.P5 copy of forwarding 5 Crl.A.No.194 of 2013 note were marked through him. PW7 is the then Circle Inspector of Excise Range, Mananthavadi, who is the investigating officer and when PW7 was examined, Ext.P6 body mahazar with respect to the vehicle in question, Exts.P7, P7(a) scene mahazars, P8 and P9 were marked through him. PW8 was an Excise Guard, who is an attestor to Ext.P6 body mahazar with respect to the vehicle. These are the evidences and materials referred to by the learned Judge in the impugned judgment.
6. As the learned counsel for the appellant raised a substantial question of law which touches the very root of the prosecution case, regarding the competency and jurisdiction of PW7 who laid the charge, which position is settled by a decision of this Court reported in Saji @ Kochumon Vs. State of Kerala (2010(3) KLT 471), I am of the view that, this Court need not go into other aspects of the prosecution case.
7. According to the learned counsel for the appellant, 6 Crl.A.No.194 of 2013 in the present case, the prosecution case is instituted upon the report laid by PW7-the then Circle Inspector of Mananthavadi Excise Range who is having no authority or competency to undertake the investigation and laid the charge connected with an incident taken place at the Muthanga check post which is coming under the Sulthan Bathery Excise Range and thereafter the entire trial is vitiated.
8. Whereas, the learned Public Prosecutor for the State submitted that though the place of occurrence is at Muthanga check Post, the vehicle was removed to Meenangadi, where the vehicle was examined by PW3 pursuant to which, the secret chambers inbuilt in the vehicle were detected, where the contraband articles were stored and Meenangadi area comes under the jurisdiction of Sultan Bathery Excise Range and therefore the contention of the learned counsel for the appellant is not correct and is unsustainable.
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9. I have carefully considered the arguments advanced by the counsel for he appellant and the learned Public Prosecutor on the question of territorial competency of PW7 to conduct the investigation and laid the charge. It is beyond dispute that the alleged occurrence was taken place at 6.10 a.m. on 17.12.2006 at Muthanga check post coming within the territorial jurisdiction of Sulthan Bathery Excise Range. The offence was also claimed to have detected by PW1-the Excise Inspector who is in charge of Muthanga check post, but he was attached to Sulthan Bathery Excise Range at the relevant time. It is also relevant to note that it was PW6-the Assistant Excise Inspector attached to Sulthan Bathery Excise Range registered Ext.P3 crime and occurrence report and prepared Ext.P4 property list and forwarded the properties as per Ext.P5 forwarding note prepared by him. It is thereafter, the investigation is undertaken by PW7. It is true, as pointed out by the learned Public Prosecutor that, in the chief examination, 8 Crl.A.No.194 of 2013 PW7 has stated that during the investigation time, he was working as the Circle Inspector of Sulthan Bathery Excise Range. But it is relevant to note that in the final report filed in this case, against column no.8, which is prescribed for the name and designation of the Investigating Officer, it is seen recorded as "P.A.Joseph, Circle Inspector of Mananthavadi Excise Range". Suffice to say that, even though the said document shows that PW7 is working as Circle Inspector of Mananthavadi Excise Range, no positive question was asked to him during the chief examination, though he had claimed in the chief examination that, he was working as Circle Inspector of Sulthan Bathery Excise Range, while in the final report, the designation is shown as "C.I., Mananthavadi Excise Range". Moreover, in Exts.P7 and P7(a) scene mahazar, the name and designation of PW7 is shown as "P.A.Joseph, Circle Inspector, Mananthavadi Excise Range". Neither during the chief examination nor at the time of cross examination, PW7 has got a case that 9 Crl.A.No.194 of 2013 while he was working as Circle Inspector of Sulthan Bathery Excise Range, he has also got authority or he was empowered to exercise the powers under sections 40 to 53 of the Abkari Act, connected with the crimes and cases occurred within the Mananthavadi Excise Range or vice versa. So, from the admitted contemporary documents of the prosecution, it can be seen that the investigation is conducted and the charge was laid by the Circle Inspector of Mananthavadi Excise Range, namely PW7. In paragraph 7 of the decision reported in Saji @ Kochumon Vs. State of Kerala (2010(3) KLT 471), this Court has held that, " The Division Bench of this Court in Varkey v. State of Kerala (1993 (1) KLT 72) following the earlier Division Bench decision in Prabhakaran v. Excise Circle Inspector (1992(2) KLT 860) held that when the Excise Inspector who filed the complaint has no authority to file the complaint, court has no jurisdiction to take cognizance or frame charge or try the accused and "the trial which followed the said charge must be treated as non est, because it was done without jurisdiction. The Full Bench of this court in Abdul Rehman v. State of Kerala {1995 (1) KLT 234 (F.B.)} upheld the decision. A later Division Bench in Subash v. State of Kerala (2008(2)KLT 1047) held that when the Magistrate has no jurisdiction to 10 Crl.A.No.194 of 2013 take cognizance of the case on a report filed by a person other than an Abkari Officer as defined under S.50 of the Abkari Act, there is total lack of jurisdiction for taking cognizance of an offence if cognizance is taken on a final report not submitted by an Abkari Officer and it is not an irregularity covered by Chapter XXXV of Code of Criminal Procedure but a total illegality and therefore, the cognizance taken, trial conducted and the conviction and sentence are all illegal. It is followed by a learned Single Judge in Subrahmaniyan v. State of Kerala (2010(2)KLT 470). In view of the legal position, it can only be found that cognizance taken on the final report submitted by PW7 the Sub Inspector of Police, Veeyapuram who has no authority to file a final report in the case and the cognizance taken, charge framed and the trial and consequent conviction and sentence awarded against the petitioner are illegal and non est. Hence it can only be set aside."
According to me, the dictum laid down by this Court is squarely applicable in the present case, since in the present case, the powers under sections 31 to 35, 38 and 40 to 53 under the Abkari Act, are not exercised by the competent officer upon whom the powers and jurisdiction are vested. As per the above sections and powers, the investigation ought to have been undertaken by the Circle Inspector of Sulthan Bathery Excise Range and the said officer ought to have filed the charge. But in the present case, as I 11 Crl.A.No.194 of 2013 indicated earlier, the charge is laid down by PW7 who is then working as the Circle Inspector of Mananthavadi Excise Range. Therefore, the cognizance taken by the court below is against the mandate contained in section 50 of the Abkari Act and the same is not an irregularity covered by Chapter XXXV of Cr.P.C. but a total illegality. In the light of the above discussion, according to me, the conviction recorded by the trial court is unsustainable and cannot be approved. Therefore, the conviction of the appellant under section 55(a) of the Abkari Act recorded by the trial court as per the impugned judgment is set aside.
In the result, this appeal is allowed setting aside the judgment dated 5.2.2013 in S.C.No.128 of 2008 of the court of Additional Sessions Judge (Ad hoc)II - Kalpetta, and the appellant/1st accused is acquitted of all the charges levelled against him and he is set at liberty.
As the appellant is acquitted of all the charges levelled against him, he is entitled to get released from the 12 Crl.A.No.194 of 2013 jail forthwith, if he is not required in any other case. Therefore, the Registry is directed to forward the Gist of the judgment to the Superintendent, Central Prison, Kannur, for further action in this regard.
Sd/-
V.K.MOHANAN, Judge ami/ //True copy// P.A. to Judge