Panachikkal Thankachan,S/O. Thomas vs State Of Kerala

Dr. Kauser Edappagath, J

This is an appeal filed by the accused nos.1 and 2 in S.C.No.241/2003 on the file of the Additional Sessions Judge, Adhoc-III, Thalassery. They

stand convicted and sentenced for committing offence punishable under Section 8(2) of the Abkari Act.

The prosecution case, in short, is that on 26.07.2001 at 7.30 p.m. the accused were found in possession of 4 litres of illicit arrack near Vellunni

Concrete Bridge in Kelakam amsom in contravention of the Abkari Act and Rules.

On receipt of summons, the accused appeared at the court below. After hearing both sides charge was framed against the accused under Section

8(2) of the Abkari Act. The charge was read over and explained to the accused who pleaded not guilty.

The prosecution examined PWs 1 to 3 and marked Exts.P1 to P10. MOs. 1 to 3 were identified. The accused were questioned under Section 313

of Cr.P.C. They denied all the incriminating circumstances brought against them during evidence. They submitted that they are innocent. No defence

evidence was adduced.

Considering the evidence on record the court below found the accused guilty under Section 8(2) of the Abkari Act. They were sentenced to

undergo rigorous imprisonment for a period of six months and to pay a fine of `1,00,000/- each, in default, to suffer simple imprisonment for three

months. Aggrieved by the said conviction and sentence the accused preferred this appeal.

Heard Sri. C.P.Peethambaran, the learned counsel for the appellants and Smt.Maya M.N., the learned Public Prosecutor.

The learned counsel appearing for the appellants impeached the finding of the court below on appreciation of evidence and resultant finding as to

the guilt. The learned counsel submitted that PW3, the investigating officer has no power and jurisdiction to conduct the investigation and as such the

entire investigation and submission of final report are vitiated. The learned counsel further submitted that no independent witness was examined to

prove seizure and sampling. The counsel also submitted that there is violation of Section 36 of the Abkari Act. The learned Prosecutor, on the other

hand, supported the findings and verdict handed down by the court below and argued that necessary ingredients of Section 8(2) of the Abkari Act had

been established and the prosecution has succeeded in proving the case beyond reasonable doubt.

The prosecution relied on the oral testimony of PWs 1 to 3 to prove its case and to fix the culpability on the accused. PW1 is the detecting officer.

He was S.I. of Police at Kelakam Police station. He deposed that on 26.07.2001 he along with his police party were on patrolling duty and when they

reached near Vellunni Bridge by 7.30 p.m. he found the accused standing on the eastern side of the Bridge carrying plastic cans and glass tumbler.

They stopped the jeep and rushed towards the accused. The accused ran away but they chased and caught them. On inspection it was found that the

cans carried by the accused contained two litres of arrack each. Immediately PW1 arrested the accused as per Exts.P1 and P2 memos. He then took

sample of 375 ml. of arrack each from the cans in two bottles, sealed the samples, stamped it and labeled it properly. The cans and arrack were

seized as per Ext.P5 seizure mahazar. Thereafter he came to the Police Station and Ext.P6 FIR was registered. MOs 1 to 3 cans and glass tumbler

were identified through him. PW2 is the attestor to Ext.P5 seizure mahazar. However, he did not support the prosecution. PW3 is the S.I. of Police,

Peravoor Police Station. He conducted investigation. Ext.P9 is the chemical analysis report. It shows that samples contained ethyl alcohol by 25.65%

and 26.12%.

It is not in dispute that the occurrence took place within the jurisdiction of Kelakam Police Station. PW1 who was S.I. of police, Kelakam police

station detected the offence. However, the investigation was conducted by PW3 who was the S.I. of Police at Peravoor Police Station. There is

nothing on record to show that PW3 has jurisdiction to conduct investigation in respect of an Abkari offence within the jurisdiction of Kelakam Police

Station. When PW3 was examined, his competency to conduct investigation in respect of an offence within the Kelakam Police Station has not been

explained. This Court in Saji @ Kochumon v. State of Kerala (2010 (3) KLT 471) has held that Sub Inspector of Police authorised to act as an Abkari

officer within his jurisdiction alone is competent to exercise jurisdiction within the territorial limits of his Police Station. Recently, this Court again in

Moothedath Sivadasan v. State of Kerala (2021 (1) KLT 744) has held that a Sub Inspector of Police authorised to act as an Abkari Officer can

exercise his jurisdiction only within the territorial limits of his Police Station. Hence, in the absence of an order conferring powers to conduct

investigation within the jurisdiction of Kelakam Police Station, any investigation conducted by PW3 is illegal and without jurisdiction. For this reason

alone I am of the view that the impugned conviction and sentence cannot be sustained.

Resultantly, the appeal stands allowed. The conviction and sentence as per the impugned judgment are set aside. The appellants/accused are found

not guilty for the offence punishable under Section 8(2) of the Abkari Act and they are acquitted. The appellants/accused are set at liberty. Pending

applications, if any, stand disposed of.