IN THE HIGH COURT OF KERALA AT ERNAKULAM [CASE NUMBER]Rev.Pet.No. 392 of 2002() 1. SAJI @ KOCHUMON, AGED 26, S/O.RAGHAVAN, Petitioner Vs 1. STATE OF KERALA, REP. BY Respondent For Petitioner :SRI.P.G.THAMPI (SR.) For Respondent : No Appearance The Hon'ble MR. Justice [ENTITY] Dated :2[SECTION]/0[SECTION]/2010 O R D E R [ENTITY],J. [CASE NUMBER] Dated 2[SECTION]th May, 2010 O R D E R
Petitioner the first accused was convicted and sentenced to rigorous imprisonment for three years and a fine of Rs.One Lakh for the offence under [SECTION] of Kerala [ENTITY] Act by Additional Assistant Sessions Judge, Alappuzha in [CASE NUMBER]. The accused challenged the conviction and sentence before Sessions court, Alappuzha in [CASE NUMBER]. Learned Additional Sessions Judge on re-
appreciation of evidence confirmed the conviction as against the first accused but set aside the conviction and sentence as against second accused and acquitted him. First accused filed this revision challenging the conviction and sentence.
2. Prosecution case is that on 26/8/1998 PW1 [ENTITY] Edathwa police station while on patrol duty along with PW2 the police constable reached southern side of Neerettupuram market, they found three persons engaged in sale of arrack in front of cement godown owned by PW[SECTION]. Seeing the police party, one person ran away and the other two, who are the accused, were apprehended. According to the prosecution petitioner was having a bottle with some liquid in his hands and second accused was holding a glass. PW1 tested the liquid in the bottle and by smell and taste he was convinced that it is illicit arrack. Accused were arrested and bottle and glass were seized and sample of 1[SECTION]0 ml from the bottle was taken and sealed and the remaining bottle and the glass were also sealed and Ext.P1 mahazar was prepared in the presence of Pws.3 and 4 the attesting witnesses. Ext.P2 FIR was prepared and [CASE NUMBER] was registered. MOs were produced before the court on the requisition submitted to the court, sample was sent for chemical analysis and obtained Ext.P3 report of Chemical Analysis to the effect that it contain ethyl alcohol. Final report was submitted by PW7, Sub Inspector of Veeyapuram police station after verification though investigation conducted by PW6, the Assistant [ENTITY] Edathwa Police Station.
3. Petitioner and second accused pleaded not guilty. Learned Assistant Sessions Judge though on the evidence convicted the second accused also, learned Sessions Judge on re-appreciation of evidence found that evidence only show that second accused was holding a glass and as there is no evidence to prove that he was in possession of illicit arrack, he cannot be convicted. Thus he was acquitted. But accepting the evidence of Pws.1 and 3 learned Assistant Sessions Judge convicted petitioner for the offence under [SECTION] of Kerala [ENTITY] Act. Learned Sessions Judge confirmed it. Learned counsel appearing for the petitioner argued that petitioner was arrested and illicit arrack was allegedly seized within the jurisdiction of Edathwa police station by PW1 the Sub Inspector of Police and Ext.P2 FIR was prepared and the case was registered in Edathwa police station but final report was submitted not by the Sub Inspector of Edathwa police station but by PW7, who is the Sub Inspector of Veeyapuram police station. It is argued that under [SECTION] of Kerala [ENTITY] Act, PW7 Sub Inspector is not competent to file a final report in respect of an offence committed within the jurisdiction of Edathwa Police Station and learned Magistrate has no jurisdiction to commit the case or the learned Assistant Sessions Judge to take cognizance of the offence based on the final report and the final report submitted by PW7 is to be treated as nonest. Learned counsel would point out that as per [CASE NUMBER], though a Sub Inspector of police in charge of law and order was appointed as [ENTITY] Officer for the purpose of [SECTION], [SECTION], [SECTION] and [SECTION] of the Act, it is only within their respective jurisdiction and if that be so, final report could have been submitted only by the [ENTITY] Edathwa or a superior officer and not by PW7, the Sub Inspector of another police station and therefore, the cognizance taken, trial conducted and the conviction are all illegal and to be quashed. Reliance was placed on the decision of this court in [PRECEDENT] and [PRECEDENT].
4. Learned Public Prosecutor argued that under [SECTION] all Sub Inspectors of police are [ENTITY] officers and as the final report was submitted by the [ENTITY] Officer, neither the cognizance taken nor the trial or conviction is bad.
[SECTION]. [SECTION] of Kerala [ENTITY] Act provides that as soon as investigation into the offence under the Act is completed, the [ENTITY] officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with [SECTION] of [ACT]. [ENTITY] officer is defined under [SECTION], means Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under [SECTION] or [SECTION]. [SECTION] provide that Government may appoint an officer to control the administration of abkari department by notification in the gazette. Under clause
(d) of [SECTION] Government may by notification in the gazette appoint officers to perform the acts and duties mentioned in [SECTION] of the Act. [SECTION] provides that Government may from time to time make rules prescribing the powers and duties under the Act to be exercised and performed by the [ENTITY] Officers of the several classes and regulating the delegation by the Government or by Commissioner of Excise, of any powers conferred by the Act or exercise in respect of [ENTITY] revenue in any law for the time being in force. [CASE NUMBER] was issued in exercise of the powers conferred by [SECTION] of the Act by the State Government. Under the SRO Government of Kerala thereby appointed "all police officers on and above the rank of Sub Inspector of Police in charge of law and order and working in the general executive branch of the police department" to be [ENTITY] officers under the respective jurisdiction for the purpose of [SECTION], [SECTION] and [SECTION] and [SECTION] of the Act and to exercise all the powers and discharge of all the duties conferred in [ENTITY] officer in the sections aforesaid. Therefore, by notification issued by the Government in exercise of the power provided under [SECTION], a Sub Inspector of police in charge of law and order and working in the general executive branch of police department is appointed as [ENTITY] officer, within his respective jurisdiction to exercise the powers provided thereunder. The respective jurisdiction could only be the jurisdiction of that Sub Inspector. It can only be within the territorial limits of his police station. Therefore, sub Inspector of police, Edathwa is the [ENTITY] Officer empowered by the Government to exercise the powers under [SECTION], [SECTION] and [SECTION] and [SECTION] of Act. Therefore, the officer who is competent to file a final report as provided under [SECTION] is only the [ENTITY] officer namely, [ENTITY] Edathwa or an officer superior to him.
6. The final report was submitted before the court by PW7, in his capacity as Sub Inspector, Veeyapuram. The report does not disclose on what power or authority he submitted the final report when he is not the [ENTITY] Officer competent to exercise the power under [SECTION] of the [ENTITY] Act within the territorial jurisdiction of Edathwa police station. The final report does not disclose that he was authorised by the Government to exercise the power under [SECTION] of the [ENTITY] Act in respect of jurisdiction of Edathwa police station. Though from the witness box PW7 claimed that he was authorised by the Circle Inspector of police as per order in 83/1998 to file the report, no such order was produced either along with the final report or even at the time of evidence. In spite of the fact that PW7 was cross examined with regard to the non production of the order as the final report does not disclose that he has been authorised by the circle Inspector of Police much less by the order in 83/1998 to either verify or the investigate or submit a report, it was not produced. If that be the case, it can only be found that PW7 who laid charge is not the competent [ENTITY] Officer authorised to file a final report as provided under [SECTION] of [ENTITY] Act in the case. Question is what is the consequence of the cognizance taken on that final report submitted by an officer who is not the [ENTITY] officer authorised to file final report and the subsequent trial. The
7. The Division Bench of this court in Varkey v. State of Kerala (1993 (1) KLT 72) following the earlier Division Bench decision in [PRECEDENT] held that when the Excise Inspector who filed the complaint has no authority to file the complaint, court has no jurisdiction to take cognizance or frame charge or try the accused and "the trial which followed the said charge must be treated as nonest, because it was done without jurisdiction. The Full Bench of this court in Abdul Rehman v. State of Kerala (199[SECTION] (1) KLT
234) upheld the decision. A latter Division Bench in [PRECEDENT] held that when the Magistrate has no jurisdiction to take cognizance of the case on a report filed by a person other than an [ENTITY] Officer as defined under [SECTION] of the [ENTITY] Act, there is total lack of jurisdiction for taking cognizance of an offence if cognizance is taken on a final report not submitted by an [ENTITY] officer and it is not an irregularity covered by [SECTION] of [ACT] but a total illegality and therefore, the cognizance taken, trial conducted and the conviction and sentence are all illegal. It is followed by a learned Single Judge in [PRECEDENT]. In view of the legal position, it can only be found that cognizance taken on the final report submitted by PW7 the [ENTITY] Veeyapuram who has no authority to file a final report in the case and the cognizance taken, charge framed and the trial and consequent conviction and sentence awarded against the petitioner are illegal and nonest. Hence it can only be set aside.
Petition is allowed. Conviction and sentence of the petitioner, the first accused by Additional Assistant Sessions Judge, Alappuzha in [CASE NUMBER] as confirmed by Additional Sessions Judge in [CASE NUMBER] is set aside. Petitioner is set at liberty.
[ENTITY], JUDGE.