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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
-----------------------------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:
-------------------------------------HAMSA KOYA, PACHERIPPADAM,
THENHIALAM AMSOM DESOM, THIRURANGADI TALUK,
MALAPPURAM DISTRICT.
BY ADV. SRI.BABU S. NAIR
RESPONDENT(S)/COMPLAINANT:
----------------------------------------------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.
------------------------------------------Criminal Appeal No. 37 of 2004
-------------------------------------------Dated this the 26th day of August, 2014
JUDGMENT
The

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

Parappanangadi,

Inspector,
and

his

party

Excise
were

Range
on

Office,

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

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

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

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.
the

There is no dispute with regard to the fact that


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

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

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

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

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