Panachikkal Thankachan vs State Of Kerala
2021 Latest Caselaw 14307 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
   THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
                     CRL.A NO. 1418 OF 2007
AGAINST THE JUDGMENT DATED 10.07.2007 IN SC NO. 241/2003 OF
        ADDITIONAL SESSIONS COURT, ADHOC-III, THALASSERY
APPELLANTS/ACCUSED 1 & 2:

    1       PANACHIKKAL THANKACHAN,S/O. THOMAS,

            KELAKOM AMSOM, VELLOONNI,

            KANNUR DIST.

    2       KUTTIYODAN LAKSHMANAN,
            S/O.KRISHNAN NAMBIAR,, KELAKAM AMSOM, VELLOONNI,
            KANNUR DISTRICT.

            BY ADV SRI.C.P.PEETHAMBARAN



RESPONDENT/COMPLAINANT:

            STATE OF KERALA,
            REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
            OF KERALA, ERNAKULAM., REPRESENTING S.I. OF
            POLICE, KELAKOM, POLICE STATION, THALASSERY.

            BY PUBLIC PROSECUTOR MS. MAYA M.N.



     THIS    CRIMINAL APPEAL    HAVING COME   UP FOR   HEARING ON
07.07.2021, THE COURT ON 08.07.2021 DELIVERED THE FOLLOWING:
 Crl.Appeal No.1418 of 2007

                               -:2:-




                         JUDGMENT

Dated this the 8th day of July, 2021

This is an appeal filed by the accused nos.1 and 2 in

S.C.No.241/2003 on the file of the Additional Sessions Judge,

Adhoc-III, Thalassery. They stand convicted and sentenced for

committing offence punishable under Section 8(2) of the Abkari

Act.

2. The prosecution case, in short, is that on 26.07.2001

at 7.30 p.m. the accused were found in possession of 4 litres of

illicit arrack near Vellunni Concrete Bridge in Kelakam amsom in

contravention of the Abkari Act and Rules.

3. On receipt of summons, the accused appeared at the

court below. After hearing both sides charge was framed against

the accused under Section 8(2) of the Abkari Act. The charge was

read over and explained to the accused who pleaded not guilty.

4. The prosecution examined PWs 1 to 3 and marked

Exts.P1 to P10. MOs. 1 to 3 were identified. The accused were

questioned under Section 313 of Cr.P.C. They denied all the Crl.Appeal No.1418 of 2007

incriminating circumstances brought against them during

evidence. They submitted that they are innocent. No defence

evidence was adduced.

5. Considering the evidence on record the court below

found the accused guilty under Section 8(2) of the Abkari Act.

They were sentenced to undergo rigorous imprisonment for a

period of six months and to pay a fine of `1,00,000/- each, in

default, to suffer simple imprisonment for three months.

Aggrieved by the said conviction and sentence the accused

preferred this appeal.

6. Heard Sri. C.P.Peethambaran, the learned counsel for

the appellants and Smt.Maya M.N., the learned Public Prosecutor.

7. The learned counsel appearing for the appellants

impeached the finding of the court below on appreciation of

evidence and resultant finding as to the guilt. The learned

counsel submitted that PW3, the investigating officer has no

power and jurisdiction to conduct the investigation and as such

the entire investigation and submission of final report are

vitiated. The learned counsel further submitted that no

independent witness was examined to prove seizure and

sampling. The counsel also submitted that there is violation of Crl.Appeal No.1418 of 2007

Section 36 of the Abkari Act. The learned Prosecutor, on the other

hand, supported the findings and verdict handed down by the

court below and argued that necessary ingredients of Section

8(2) of the Abkari Act had been established and the prosecution

has succeeded in proving the case beyond reasonable doubt.

8. The prosecution relied on the oral testimony of PWs 1

to 3 to prove its case and to fix the culpability on the accused.

PW1 is the detecting officer. He was S.I. of Police at Kelakam

Police station. He deposed that on 26.07.2001 he along with his

police party were on patrolling duty and when they reached near

Vellunni Bridge by 7.30 p.m. he found the accused standing on

the eastern side of the Bridge carrying plastic cans and glass

tumbler. They stopped the jeep and rushed towards the accused.

The accused ran away but they chased and caught them. On

inspection it was found that the cans carried by the accused

contained two litres of arrack each. Immediately PW1 arrested

the accused as per Exts.P1 and P2 memos. He then took sample

of 375 ml. of arrack each from the cans in two bottles, sealed the

samples, stamped it and labeled it properly. The cans and arrack

were seized as per Ext.P5 seizure mahazar. Thereafter he came

to the Police Station and Ext.P6 FIR was registered. MOs 1 to 3 Crl.Appeal No.1418 of 2007

cans and glass tumbler were identified through him. PW2 is the

attestor to Ext.P5 seizure mahazar. However, he did not support

the prosecution. PW3 is the S.I. of Police, Peravoor Police Station.

He conducted investigation. Ext.P9 is the chemical analysis

report. It shows that samples contained ethyl alcohol by 25.65%

and 26.12%.

9. It is not in dispute that the occurrence took place

within the jurisdiction of Kelakam Police Station. PW1 who was

S.I. of police, Kelakam police station detected the offence.

However, the investigation was conducted by PW3 who was the

S.I. of Police at Peravoor Police Station. There is nothing on record

to show that PW3 has jurisdiction to conduct investigation in

respect of an Abkari offence within the jurisdiction of Kelakam

Police Station. When PW3 was examined, his competency to

conduct investigation in respect of an offence within the Kelakam

Police Station has not been explained. This Court in Saji @

Kochumon v. State of Kerala (2010 (3) KLT 471) has held

that Sub Inspector of Police authorised to act as an Abkari officer

within his jurisdiction alone is competent to exercise jurisdiction

within the territorial limits of his Police Station. Recently, this

Court again in Moothedath Sivadasan v. State of Kerala Crl.Appeal No.1418 of 2007

(2021 (1) KLT 744) has held that a Sub Inspector of Police

authorised to act as an Abkari Officer can exercise his jurisdiction

only within the territorial limits of his Police Station. Hence, in the

absence of an order conferring powers to conduct investigation

within the jurisdiction of Kelakam Police Station, any investigation

conducted by PW3 is illegal and without jurisdiction. For this

reason alone I am of the view that the impugned conviction and

sentence cannot be sustained.

Resultantly, the appeal stands allowed. The conviction and

sentence as per the impugned judgment are set aside. The

appellants/accused are found not guilty for the offence

punishable under Section 8(2) of the Abkari Act and they are

acquitted. The appellants/accused are set at liberty. Pending

applications, if any, stand disposed of.

DR. KAUSER EDAPPAGATH JUDGE

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