Kerala High Court
Chandran vs State Of Kerala on 2 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942
CRL.A.No.792 OF 2011
AGAINST THE JUDGMENT IN SC 432/2010 OF ADDITIONAL SESSIONS JUDGE
(ADHOC) I, MANJERI
CRIME NO. 31/2007 OF PONNANI EXCISE RANGE, MALAPPURAM
APPELLANT/ACCUSED:
CHANDRAN
S/O. PARANGODAN
VAZHAYIL VALAPPU
ALAMCODE
PONNANI
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
SRI.UNNI SEBASTIAN KAPPEN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,, ERNAKULAM.
BY SRI. M.S.BREEZ, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-03-2021,
THE COURT ON 02-03-2021 DELIVERED THE FOLLOWING:
Crl.Appeal No. 792 of 2011 2
JUDGMENT
In this appeal preferred under Section 374(2) of the Code of
Criminal Procedure, hereinafter referred to as the 'Cr.P.C', the legality
and correctness of the conviction and sentence imposed on the
appellant in S.C. No. 432/2010 of the Manjeri Sessions Division are
called in question. The appellant is the convict in the said case. The
case had originated on a final report laid by the Excise Circle
Inspector, Ponnani Excise Range before the Judicial First Class
Magistrate, Ponnani alleging offence punishable under Section 8(1) of
the Abkari Act.
2. The allegation against the appellant was that on
21.11.2007 while the Excise Circle Inspector, Ponnani and party were
on patrol duty through the Changaramkulam - Edappal sector of
National Highway from south to north, about 300 meters north of
Manthadam junction in Ponnani taluk, near the panchayath well, the
appellant accused was found in illegal possession of three litres of
arrack. He was arrested along with the contraband and the material
object was seized under a mahazar in the presence of independent
witnesses. Sample was collected from the spot itself. Thereafter, the
party reached back the Excise Range Office and Crime No. 31/2007 of
Ponnani Excise Range was registered. After investigation, the Circle
Inspector, Tirur Range laid the charge sheet before the Judicial First
Class Magistrate, Ponnani. Accordingly, the case was taken on file as
C.P. No. 46/2010. After completing the procedural formalities, the
matter was committed to the Sessions Court, Manjeri. The learned
Sessions Judge made over the case for trial to the Additional Sessions
Judge (Adhoc)-I, Manjeri.
3. After hearing counsel on both sides, when the charge was
framed, read over and explained, the appellant pleaded not guilty. He
was defended by a counsel of his choice. He was on bail.
4. Six witnesses were examined on the side of the
prosecution as PWs 1 to 6. Exts. P1 to P7 were also marked. Material
object was identified and marked as MO1. On conclusion of
prosecution evidence, when examined under Section 313(1)(b) of the
Cr.P.C, the appellant denied all the incriminating materials and
reiterated his innocence. As it was not a fit case for acquittal under
Section 232 of the Cr.P.C., the appellant was called upon to adduce
evidence in defence. However, no evidence was adduced by him.
After hearing counsel on both sides, the learned Additional Sessions
Judge repelled his plea of innocence, found him guilty under Section
8(1) of the Abkari Act and sentenced him to undergo rigorous
imprisonment for three months and to pay a fine of Rs. 25,000/-, in
default to undergo rigorous imprisonment for three months; set off
was also allowed under Section 428 of the Cr.P.C., for the period from
21.11.2007 till 04.12.2007. This conviction and sentence are the
subject matter of the appeal.
5. Heard the learned counsel for the appellant and also the
learned Senior Public Prosecutor. The trial court records were also
perused.
6. After hearing counsel on both sides and perusing the
records, it is certain that even though the testimony of witnesses
clearly indicate that PW1 and his colleagues, PWs 4 and 5 can be
believed to say that the appellant was found carrying arrack as alleged
by the prosecution at the place and time, there is an overwhelming
reason which is really formidable to say that the trial court was not
justified in convicting the appellant. It is seen that the case was
investigated and charge sheet was laid by PW6 T.B.Jayaram, the
Excise Circle Inspector, Tirur. It is the common case that he had
conducted investigation and laid the charge sheet before the committal
court. As a preliminary point, the learned counsel for the appellant
argued that the alleged incident had happened within the jurisdiction
of Excise Range Office, Ponnani whereas the investigation was
conducted by the Excise Inspector, Tirur, who had no jurisdiction to
conduct investigation in respect of an offence committed in Ponnani
Excise Range. In support of the contention, the learned counsel also
relied on the decisions reported in Saji @ Kochumon v. State of
Kerala [2010 (3) KLT 471], Thomas v. Sub Inspector of Police
[ 2016(4) KLT SN 60 (C.No. 68)] and Shankaran v. State of Kerala
[2019(3) KLT 3097].
7. The learned Public Prosecutor did not have any argument
to meet this contention which goes to the very root of the matter.
8. By virtue of notification SRO. No. 361/2009 issued under
the powers conferred under Section 4 of the Abkari Act, a notification
has been issued on 08.05.2009, defining the area of operation of
Abkari Officers. No doubt PW6, Circle Inspector, Tirur is an Abkari
Officer. But the question is whether he had any jurisdiction to
exercise the powers of an Abkari Officer within the area of operation
in Ponnani Excise Range. That aspect had been disputed by the
appellant.
9. By virtue of notification referred to above dated
08.05.2009, against clause No. 12 of the Schedule attached to the
notification, an Inspector-in-charge of Range does have jurisdiction
only within his respective jurisdiction. In other words, unless
specifically conferred by the Government by special authorisation, the
Excise Circle Inspector, Tirur has no jurisdiction to conduct
investigation in an offence allegedly committed within the jurisdiction
limits of the Ponnani Excise Range. That means, the final report laid
by PW6 in respect of an offence committed in the local jurisdiction of
the Excise Range, Ponnani is a non est.
10. This aspect has been considered in detail by a Division
Bench of this Court in Subash v. State of Kerala [2008 (2) KLT
1047]. In that decision, this Court has held that the Magistrate has no
power to take 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. An
Officer other than an Abkari Officer as defined in the Abkari Act
cannot file a report, even if investigation was conducted by him. Here,
the Circle Inspector of Excise, Tirur is not an Abkari Officer within
the definition of the Abkari Act in respect of the area of jurisdiction of
the Excise Range, Ponnani, within which the alleged crime was
committed. In that view of the matter, the Judicial First Class
Magistrate, Ponnani ought not to have taken cognizance of offence or
committed the case on the basis of a final report laid by an
incompetent officer. All the proceedings followed, i.e., the committal,
the consequent trial, conviction etc., therefore cannot stand judicial
scrutiny.
In the light of this inherent lack of jurisdiction, the conviction
and sentence imposed on the appellant are liable to be interfered with.
The conviction and sentence are quashed. In reversal of the finding of
the learned Additional Sessions Judge, he is found not guilty and
acquitted under Section 386(b)(i) of the Cr.P.C. His bail bond shall
stand cancelled. Fine amount, if any, realised shall be refunded.
sd/-
K.HARIPAL
JUDGE
DCS/01.03.2021
