Kerala High Court
Unni 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.1543 OF 2006
AGAINST THE ORDER/JUDGMENT IN SC 7/2004 DATED 24-05-2006 OF
ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA
APPELLANT/S:
UNNI
S/O.DEVADASAN,VADAKKEPAIKKATTU, KUDASSERI
AMSOM,, ATHOLI, KOZHIKODE DISTRICT.
BY ADV. SRI.C.R.SIVAKUMAR
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY THE SUB INSPECTOR OF POLICE,
EDACHERY, THROUGH THE PUBLIC PROSECUTOR, HIGH
COURT OF, KERALA, ERNAKULAM.
R1 BY PUBLIC PROSECUTOR
OTHER PRESENT:
SMT.MAYA.M.N., PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
22.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRL.A.No.1543 OF 2006 2
P.V.KUNHIKRISHNAN, J
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Crl.Appeal No. 1543 of 2006
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Dated this the 22nd day of February, 2021
JUDGMENT
The appellant is the accused in Sessions Case No. 7/2004 on the
file of the Addl.District and Sessions Judge, Vadakara. The above case
is charge sheeted against the appellant by the Edachery police.
2. The prosecution case is that on 2.8.2002 at 2.30 p.m., the
accused was found in possession of Indian made foreign liquor
illegally imported from the State of Pondicherry. The quantity seized
is 133 bottles of Indian made foreign liquor each containing 180 ml.
3. To substantiate the case, prosecution examined PW1 to
PW6. Exts. P1 to P8 were marked. MO1 to MO3 are material objects.
On going through the evidence and the documentary evidence, the
trial court found that the accused committed the offence under
Sec.55(a) of the Abkari Act. He was sentenced to undergo rigorous
imprisonment for three years and to pay a fine of Rs.1,00,000/-
(Rupees One lakh only). In default of payment of fine, the accused is
directed to undergo rigorous imprisonment for six months. Aggrieved
by the conviction and sentence, this Criminal Appeal is filed.
4. Heard counsel for the appellant and Public Prosecutor.
5. The counsel for the appellant submitted that the entire
prosecution is vitiated for the simple reason that an unauthorised
officer investigated the case. The counsel submitted that the alleged
search, seizure and arrest was within the jurisdiction of Edachery
Police Station. But the investigation in this case was conducted by
PW6, the Sub-Inspector of Police, Vadakara. The counsel submitted
that he has no jurisdiction to investigate the case and it will go to the
root of the case in the light of the judgment of this Court in
Narayanankutty v. State of Kerala [2015 (1) KHC 702]. The
counsel also submitted that there is a long delay in producing the
contraband articles before the Court.
6. The Public Prosecutor submitted that there is oral and
documentary evidence to prove the case and there is nothing to
interfere with the conviction and sentence imposed on the appellant.
7. The point for consideration in this case is whether the
accused committed the offence under Sec. 55 (a) of the Abkari Act.
8. Admittedly, the search, seizure and arrest in this case was
within the territorial jurisdiction of Edachery Police Station. But the
investigation in this case was conducted by PW6, the Sub-Inspector of
Police, Vadakara. I perused the evidence of PW6, the Sub-Inspector of
Police, Vadakara. He deposed that he investigated the case based on
the direction from the Rural SP. Rural SP has no jurisdiction to
delegate the investigation in abkari case. Only, the Government can
authorise a person to do the investigation in an abkari case. This
point is considered by this Court in Narayanankutty v. State of
Kerala [2015 (1) KHC 702]. The relevant portion is extracted
hereunder :
7. "PW6 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 PW6 for conducting investigation cannot be equated with a
notification issued under Sec.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 PW6, 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 nonest 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 Cr.P.C. 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 judgment, I think the entire
prosecution is vitiated.
Therefore, this Criminal Appeal is allowed. The conviction and
sentence imposed on the appellant as per the judgment dated
24.5.2006 in Sessions Case No.7/2004 on the file of the Addl. District
& Sessions Judge, Vadakara is set aside. The appellant is set at
liberty. Bail bond, if any, executed by the appellant, is cancelled.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
