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IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH

TUESDAY, THE 26TH DAY OF AUGUST 2014/4TH BHADRA, 1936

CRL.A.NO. 37 OF 2004

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AGAINST THE JUDGMENT IN SC 246/2002 OF ADDITIONAL DISTRICT & SESSIONS

COURT (ADHOC), FAST TRACK COURT-I, MANJERI DATED 05-01-2004

APPELLANT(S)/ACCUSED:

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HAMSA KOYA, PACHERIPPADAM, THENHIALAM AMSOM DESOM, THIRURANGADI TALUK, MALAPPURAM DISTRICT.

BY ADV. SRI.BABU S. NAIR

RESPONDENT(S)/COMPLAINANT:

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THE STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, EXCISE CIRCLE OFFICE, TIRUR-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, KOCHI-31.

R1 BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

AS

C.R.

BABU MATHEW P. JOSEPH, J.

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Criminal Appeal No. 37 of 2004

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Dated this the 26 th day of August, 2014

The

J U D G M E N T

appellant

was

convicted

by

the

Additional

Sessions Court (Adhoc)-I, Manjeri, for the offence under

Section

55(g) of the Abkari Act. He was sentenced to

undergo rigorous imprisonment for five years and to pay a

fine

of

1

lakh

and,

in

default

of payment of fine, to

undergo simple imprisonment for one year. Challenging

the conviction and sentence so passed by the court below,

the appellant has filed this appeal.

2. Heard the learned counsel appearing

for the

appellant and the learned Public Prosecutor appearing for

the respondent.

3. The prosecution case is briefly stated as follows:

PW1,

the

Excise

Inspector,

Excise

Range

Office,

Parappanangadi,

and

his

party

were

on

patrol

at

Pacherippadam in Thenhipalam Village, at about 05.30

p.m. on 04-02-1999. While so, the appellant was found in

Criminal Appeal No. 37 of 2004

2

possession

of about

16 litres

of wash

in

a

20 litre

jerrycan.

Since the appellant had committed an offence

under the Abkari Act, he was arrested then and there by

PW1

preparing

Ext.P1

Arrest

Memo.

The

jerrycan

containing the wash was seized by PW1 under Ext.P2

Seizure Mahazar in the presence of witnesses.

PW1 had

drawn 300 ml. of wash in a 375 ml. bottle as sample from

the bulk contained in the jerrycan. Both the sample bottle

and the jerrycan were labelled and sealed. Thereafter,

PW1, reached the

Excise Range Office, Parappanangadi,

with the appellant and the contraband and registered

Crime No.1 of 1999 of that Range Office in respect of the

occurrence. Ext.P3 is the Crime and Occurrence Report

thus prepared by PW1. He had produced the appellant

and the properties before the court on the next day.

Ext.P5 is the List of Property and Ext.P4 is the copy of the

Forwarding Note. The initial investigation of the case had

been conducted by PW5, the Excise

Inspector, Excise

Circle Office, Tirur. He had questioned the witnesses and

recorded

their

statements.

The

investigation

was

Criminal Appeal No. 37 of 2004

3

continued by PW6, the Excise

Inspector, Excise Circle

Office, Tirur. He had also questioned the witnesses and

recorded

their

statements.

He

had

completed

the

investigation and prepared the Final Report. PW7, the

Excise Inspector, Excise Range Office, Parappanangadi,

had submitted the Final Report before the Judicial First

Class Magistrate's Court, Parappanangadi.

4. The learned Magistrate committed the case to

the Court of Session, Manjeri, and, from there, it was

made over to the Assistant Sessions Court, Tirur. A

charge was framed against the appellant alleging the

offence

under Section 55(g) of the Abkari

Act. The

appellant pleaded not guilty of the charge. Later, the case

was

transferred

to

the

Additional

Sessions

Court

(Adhoc)-I, Manjeri. The prosecution examined PWs. 1 to 7

and marked Exts.P1 to P8 and MO.1

on their side. The

appellant was examined under Section 313 of Cr.P.C. He

had denied all the incriminating circumstances shown

against him. The defence had not adduced any evidence.

The court below, after considering the matter, found the

Criminal Appeal No. 37 of 2004

4

appellant guilty of the offence under Section 55(g) of the

Abkari Act. He was heard on the question of sentence and

imposed the sentence on him.

5. The appellant has raised various contentions

challenging the conviction and sentence passed against

him. Learned counsel for the appellant submits that the

alleged offence in this case had been detected by PW1. He

was a competent officer for doing the same. But, the

investigation of the case had been conducted by PWs. 5

and 6. They were the Excise Inspectors attached to the

Excise Circle Office, Tirur, at the relevant time. They were

not competent officers for conducting the investigation as

per the Notification issued by the Government of Kerala

under Section 4 of the Abkari Act empowering various

officers for discharging various duties under the Abkari

Act, contends the learned counsel.

6. There is no dispute with regard to the fact that

the

Notification,

G.O.MS.No.356/67/Rev.

dated

10-08-1967, issued as S.R.O.No.234/67 was governing

the field at the relevant time. Going by this Notification,

Criminal Appeal No. 37 of 2004

5

PWs. 5 and 6, being the Excise Inspectors attached to the

Excise Circle Office, Tirur, had no jurisdiction to conduct

the investigation of the case on hand exercising powers

under Sections 40 to 53 of the Abkari Act. The powers

under Sections 40 to 53 which include the powers of

investigation of the case were not given to the Excise

Inspectors attached to the Excise Circle Offices as per

S.R.O.No.234/67. The Excise Inspectors attached to the

Excise Circle Offices, being the Excise Inspectors of the

Excise Department, are given jurisdiction to exercise the

powers under Sections 31, 32, 34, 35, 38, 39, 53 and 59

of the Abkari Act as per Clause

10 of the Schedule to

S.R.O. No.234/67. No other powers had been granted to

them under the said Notification. As per Clause 8 of the

said Schedule, the powers under Sections 40 to 53 of the

Abkari Act which include the powers of investigation and

submitting of

Final Report after investigation had been

given to the Excise Inspectors exercising jurisdiction

within

the areas

for which

they are appointed. The

occurrence in this case had taken place within the limits

Criminal Appeal No. 37 of 2004

6

of the Excise Range Office, Parappanangadi. Therefore,

the

Excise

Inspector,

Excise

Range

Office,

Parappanangadi, can exercise the powers of investigation.

Such a power cannot be exercised by an Excise Inspector

attached to the Excise Circle

Office, Tirur, as such a

power is not conferred on him under the Notification

issued

as

S.R.O.

No.234/67.

But,

such

a

power

is

conferred

on

the

Excise

Inspector

appointed

in

a

particular Excise Range Office. In this case, PW1 or PW7,

being

the

Excise

Inspectors,

Excise

Range

Office,

Parappanangadi, had jurisdiction to exercise the powers

of investigation as the occurrence took place within the

territorial limits of their jurisdiction. But, PWs. 5 and 6,

the Excise Inspectors attached to Excise Circle Office,

Tirur, had no such jurisdiction going by the Notification

issued by the Government. Since the investigation of the

case had been conducted by incompetent officers, 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

Criminal Appeal No. 37 of 2004

7

have framed charge against the appellant 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

Section 227 of Cr.P.C. Therefore, the conviction and

sentence passed by the court below against the appellant

are liable to be set aside. He is entitled to be discharged

in this case.

In the result, the conviction and sentence passed by

the court below against the appellant are set aside. He is

discharged and set at liberty. The bail bond executed by

him shall stand cancelled.

This appeal is allowed.

BABU MATHEW P. JOSEPH, JUDGE.

AS