The main legal point established in the judgment is the court's power to consider an appeal on merits, invoking the inherent power under Section 482 of the Code, in exceptional circumstances despite the appeal not lying to the High Court ordinarily.

JUDGMENT :

A simple appeal from a conviction for an offence under the Abkari Act has thrown open issues of a demanding nature. The complex questions arise out of a submission by the learned counsel for appellant. Adv. Jacob Abraham in all fairness submitted that this appeal was not legally maintainable at the first instance itself and instead ought to have been preferred before the Sessions Court.

2. Appellant was the accused in S.C. No.233 of 2005 on the files of the First Additional Assistant Sessions Court, Kozhikode. He was tried for the offence under Sections 55(a) and 8(1) of the Abkari Act and was found guilty and sentenced to undergo imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for a period of three months.

3. The conviction and sentence imposed by judgment dated 29.10.2007 are challenged in this appeal, which was admitted on 6.11.2007. For the last 13 years, this appeal has been pending on the files of this Court.

4. The prosecution case was that on 18.12.2007, the accused was found in possession of four litres of arrack kept in a 10 litre can in his residential house and thereby committing the offence under Sections 55(a) and 8(1) of the Abkari Act, 1077. On conclusion of investigation, a final report was filed and the learned Magistrate on noticing that the case is exclusively triable by a Court of Session committed the case for trial to the Sessions Court under Section 209 of the Cr.P.C.

5. By order dated 23.3.2005, the Sessions Judge made over the case to the First Additional Assistant Sessions Court, Kozhikode, for trial and disposal. During trial, the prosecution examined PW1 to PW7 and marked Ext.P1 to Ext.P8, apart from the material object MO1. After conclusion of the trial, the Assistant Sessions Court found the accused guilty and imposed a sentence of imprisonment and fine, as mentioned earlier.

6. The learned counsel for the appellant commenced his arguments by pointing out that there is an inherent mistake in the appeal and that neither the appellant nor the registry of this Court had noted such a mistake, which according to him, was no doubt a bona fide one. The learned counsel pointed out that the trial having been conducted before an Assistant Sessions Court, the appeal lies only to the Sessions Court under Section 374 of the Cr.P.C. and not to the High Court.

7. Ordinarily, this Court ought to have relegated the appellant to prefer an appeal before the Sessions Court. However this case has been pending for the last 13 years on the files of this Court and it would be a travesty of justice to relegate the appellant, at this distance of time, to the Sessions Court, to pursue his appellate remedy. Since it was felt that a deeper consideration ought to be made, not only on the forum for appeal but also as to whether the Sessions Judge can make over cases under the Abkari Act to Assistant Sessions Court. Accordingly, Adv.M.P.Madhavankutty as well as Adv. Renjith P.Marar were appointed as Amicus Curiae to assist the court.

8. I have heard Sri.Jacob Abraham learned counsel for the appellant, Sri.P.K.Babu, learned Senior Public Prosecutor, apart from the learned Amicus Curiae, Sri.M.P.Madhavankutty, who filed written submissions also in support of his arguments and Adv.Renjith B.Marar, who filed written submissions.

9. The following points arise for consideration.

(i) Can the Sessions Judge make over a case relating to an offence under the Abkari Act to an Assistant Sessions Court?

(ii) To which court does an appeal lie from a judgment of conviction passed by an Assistant Sessions Court?

(iii) If the appeal does not lie to the High Court ordinarily, do the circumstances in the present case require this Court to consider this appeal on merits?

(iv) What orders are to be passed in the appeal on the merits of the case?

Q.(i) Can the Sessions Judge