Kerala High Court
Punnamttathil Thomas vs State Of Kerala on 22 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942
CRL.A.No.1163 OF 2006
AGAINST THE JUDGMENT IN SC 545/2002 DATED 26-05-2006 OF ADDITIONAL
SESSIONS JUDGE (ADHOC)-III, THALASSERY
APPELLANT/ACUSSED:
PUNNAMTTATHIL THOMAS
S/O PAUL,KOTTIYOOR AMSOM, AMBAYATHODU.
BY ADV. SRI.GRASHIOUS KURIAKOSE
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF
KERALA, ERNAKULAM.
R1 BY SMT.MAYA.M.N,PUBLIC PROSECUTOR
OTHER PRESENT:
SRI.PRANOY.K.KOTTARAM FOR APPELLANT,
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1163 OF 2006
2
P.V.KUNHIKRISHNAN, J.
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Crl.A. No. 1163 of 2006
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Dated this the 22nd day of February, 2021
JUDGMENT
Appellant is the accused in SC No. 545/2002 on the file of
the Additional Sessions Judge, Adhoc-III, Thalassery . The above
case is charge sheeted by the Kelakam Police Station, against
the appellant alleging offence punishable under Section 8(2) of
the Abkari Act.
2. The prosecution case is that, on 01-06-2001 at 8p.m,
the accused was found in possession of 4 litres of illicit country
arrack at Ambayathodu in Kottiyoor amsom. Hence it is alleged
that, the accused committed the offence punishable under
Section 8(2) of the Abkari Act.
3. To substantiate the case, the prosecution examined
PW1 to PW4. Exts. P1 to P7 are the documents marked on the
side of the prosecution. MO1 and MO2 are the material objects.
4. After going through the evidence and documents, the
CRL.A.No.1163 OF 2006
trial Court found that, the accused committed the offence
punishable under Sections 8(2) of the Abkari Act. He is
sentenced to undergo rigorous imprisonment for a period of six
months and to pay a fine of Rs. 1,00,000/-. In default of
payment of fine, the accused is directed to undergo simple
imprisonment for a period of three months. Aggrieved by the
conviction and sentence, this Criminal Appeal is filed.
5. Heard the learned counsel for the appellant and the
learned Public Prosecutor.
6. The learned counsel for the appellant submitted that,
the entire prosecution against the appellant is vitiated for the
simple reason that PW4 the Sub Inspector of Police of Maloor
Police Station, investigated this case. The alleged incident was
within the jurisdiction of Kelakam Police Station. The learned
counsel submitted that, the Sub Inspector of Police of Maloor
Police Station has no jurisdiction to investigating the case,
because there is no authorisation from the government. The
counsel relied the judgment of this Court, in Narayanankutty v.
State of Kerala [2015 (1) KHC 702]
7. The learned Public Prosecutor submitted that, there is
CRL.A.No.1163 OF 2006
oral and documentary evidence to prove the case. The learned
Public Prosecutor submitted that, this Court may not interfere
with the conviction and sentence on technical grounds.
8. Admittedly, the search, seizure and arrest in this case
is within the jurisdiction of Kelakam Police Station. It is an
admitted fact that, PW4, the Sub Inspector of Police, Maloor
Police Station investigated the case. According to PW4, he
investigated the case based on the direction of the Circle
Inspector Inspector of Police, Peravoor. Circle Inspector of Police,
Peravoor has no authority to delegate PW4 to investigate a case
happened within the jurisdiction of Kelakam Police Station. This
Court considered this point in Narayanankutty v. State of
Kerala [2015 (1) KHC 702] the relevant portion is extracted
here under:
"7. PW 6 deposed that he had taken over
the investigation in this case as directed by the
Circle Inspector of Police, Hemambika Nagar, on
12/07/2003. A Circle Inspector of Police is
competent under SRO No. 321 of 1996 to conduct
investigation of a case within his territorial
jurisdiction. He cannot delegate such power given
to him under SRO No. 321 of 1996 to a
subordinate Police Officer because, such a power
can be conferred only by a notification issued by
the Government under S.4 of the Abkari Act. The
direction issued by the Circle Inspector of Police to
CRL.A.No.1163 OF 2006
PW 6 for conducting investigation cannot be
equated with a notification issued under S.4 of the
Abkari Act. Therefore, the authority granted by
the Circle Inspector of Police cannot be a ground
for exercising jurisdiction by a Sub Inspector of
Police beyond his territorial jurisdiction.
8. As the investigation was conducted by
PW 6, 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
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
appellant was entitled to be discharged as
provided under S.227 of CrPC. Therefore, the
conviction and sentence passed against the
appellant are liable to be set aside. The appellant
is entitled to be discharged in this case".
9. In the light of the above principle, the entire
prosecution is vitiated. An unauthorised person investigating the
case and that will go to the root of the case.
Therefore, this Criminal Appeal is allowed. The
conviction and sentence imposed on the appellant as per the
judgment dated 26-05-2006 in SC No. 545/2002 on the file of
the Additional Sessions Judge, Adhoc-III, Thalassery is set aside.
The appellant is set at liberty. The bail bond, if any, executed by
CRL.A.No.1163 OF 2006
the appellant, is cancelled. If any amount is deposited by the
appellant at the time of executing the bond based on the interim
order passed in this appeal, the same will be disbursed to the
appellant.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
sa
