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2018 Supreme(Ker) 682
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Annie John, J.
Viswan, S/O. Sreedharan – Appellant
Versus
The Sub Inspector of Police, Thamarassery Police Station and Ors. – Respondents
CRL. A. No. 1760 of 2008
Decided On : 10-10-2018
For the Appellant : Sri. T.G. Rajendran, Adv.
For the Respondent: Smt. Sheeba K.K., Public Prosecutor
Headnote:The Abkari Act – Section 55(a) and section 8 .
Facts of the case:
On 11.02.2004, at 5.15 p.m., the accused was found in possession of two litres of arrack in a can in the courtyard of House No. 16/460 belonging to his wife at Muttukadavu in Thamarassery Panchayath in Kedavur Desom in Raroth Amsom – Originally, the case was charge-sheeted under Section 55(a) of the Abkari Act; later it was altered to Section 8 of the Abkari Act.
Reasons for the decision:
Sub Inspector of Police, Thamarassery is the “Abkari Officer” within the territorial jurisdiction of the Thamarassery Police Station – The SI of Police, Kodenchery(PW4), who has investigated the case as per the direction of the CI of Police, Thamarassery, who has no power to designate PW4 as the Abkari Officer to investigate the offence committed within the limits of the Thamarassery Police Station- PW4, the Abkari Officer of the Kodencherry Police Station, has conducted investigation of the abkari offence allegedly committed within the territorial limits of Thamarassery Police Station – He has no power to exercise the power of the Abkari Officer outside the limits of the Kodencherry Police Station – No provision either in the Abkari Act or no notification was issued by the Government to confer jurisdiction to the Abkari Officers outside the jurisdictional limit – The Government of Kerala alone is empowered to appoint an Abkari Officer. No doubt, the CI, Police, Thamarassery has no power to confer jurisdiction to the ASI of Police, Kodencherry to investigate this case.
Finding of the court:
The cognizance taken on the final report submitted by PW4, the S.I of Police, Kodencherry, who has no authority to file a final report in the case, is illegal and the trial conducted and the conviction and the sentence awarded against the appellant also cannot be sustained – The conviction and the sentence passed against the petitioner in S.C. No. 242 of 2005 by the Additional District & Sessions Judge, Fast Track (Adhoc-II), Kozhikode is set aside – The bail bond executed by him shall stand cancelled and he is set at liberty forthwith.
Result : Allowed
The appellant is the accused in S.C. No. 242 of 2005 on the file of the Additional District and Sessions Court, Fast Track (Adhoc-II), Kozhikode for an offence punishable under Section 8 of the Abkari Act.
2. The case of the prosecution is that on 11.02.2004, at 5.15 p.m., the accused was found in possession of two litres of arrack in a can in the courtyard of House No. 16/460 belonging to his wife at Muttukadavu in Thamarassery Panchayath in Kedavur Desom in Raroth Amsom. Originally, the case was charge-sheeted under Section 55(a) of the Abkari Act; later it was altered to Section 8 of the Abkari Act.
3. On the side of prosecution, PWs 1 to 4 were examined and Exts.P1 to P7 and MO1 were marked. After the closure of the prosecution evidence, the accused were questioned under Section 313 of Cr.P.C. No defence evidence was adduced on the side of the accused.
4. The case was originally filed before the Judicial First Class Magistrate-I, Thamarassery as C.P. No. 52 of 2004. After complying the legal formalities, the learned Magistrate committed the case to the Sessions Court, Kozhikode. Thereafter, the case was made over to the Asst. Sessions Court (IIIrd Addl.), Kozhikode.
5. The learned Additional Sessions Judge, as per judgment dated 01.07.2008, found him guilty of the offence and convicted and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default to pay the fine, to undergo rigorous imprisonment for six months. Set off was also allowed.
6. PW1 has deposed that while he was on patrol duty, he saw the accused standing in the courtyard of his house with a can and glass in his possession and two other persons standing near to him. He obtained the can from the possession of the accused and verified the same and found that the said can contained two litres of arrack. He has taken two samples of 180 ml. each from the contents of the can. Then he sealed the can and the sample bottles, and affixed labels containing the signatures of himself, accused and the witnesses. Thereafter, he seized the thondi articles by preparing Ext.P1 mahazar and arrested the accused as per Ext.P2 memo. After reaching the office, he registered the case as per Ext.P3 FIR. On the next day, he has produced the thondi articles before court. He has also prepared the forwarding note and placed before the court for sending the sample for chemical analysis. Ext.P4 is the forwarding note and Ext.P5 is the Chemical Analysis Certificate. The case was investigated by the S.I of Police, Kodencherry. The site plan received from the Village Office was marked as Ext.P6. MO1 can and glass were identified by him. MO1 'can' contains the label with the signatures of the detecting officer, the accused and the witnesses. After the completion of the investigation, the case was charged against the accused.
7. PW2, a Constable who accompanied PW1 at the time of detecting the offence. He has also illustrated the incident in accordance with the evidence adduced by him. PW3 is an independent witness, who turned hostile to the prosecution. PW4 is the S.I of Police, Kodencherry, who has investigated the case as per the direction of the C.I of Police Thamarassery. He has also prepared the scene mahazar, which was marked as Ext.P7.
8. In fact, the prosecution has examined three witnesses, out of whom PW3 turned hostile to the prosecution. PW1 is the detecting officer. PW2 is the Constable who accompanied PW1 at the time of detection of the offence. No doubt, the evidence of the detecting officer, who was examined as PW1 was supported by the evidence of PW2. The evidence of PWs 1 and 2 stand corroborated by Ext.P1 seizure mahazar, Ext.P2 arrest memo prepared at the spot and Ext.P3 FIR.
9. The defence has taken a contention that the sole testimony of official witnesses is not sufficient to arrive at a conclusion that the accused is guilty of the aforesaid offence. In support of the said contention, he placed reliance on the decisions
