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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: P.G. Thampi (SR.), Advocate.
  • For the Respondent: No Appearance.
Judges
  • M. Sasidharan Nambiar, J.
Acts
  • bad.6. Sub-section (2) of S. 50 of Kerala Abkari Act
  • S. 50 of Kerala Abkari Act, PW 7 Sub
  • S. 55(i) of Kerala Abkari Act
  • S. 50 of the Abkari Act,
  • S. 50 of Abkari Act
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: P.G. Thampi (SR.), Advocate.
  • For the Respondent: No Appearance.
Judges
  • M. Sasidharan Nambiar, J.
Acts
  • bad.6. Sub-section (2) of S. 50 of Kerala Abkari Act
  • S. 50 of Kerala Abkari Act, PW 7 Sub
  • S. 55(i) of Kerala Abkari Act
  • S. 50 of the Abkari Act,
  • S. 50 of Abkari Act
See more information ...
Smart Summary

Summary of Opinion

Factual and Procedural Background

On 26.08.1998, while on patrol near Neerettupuram market, police (PW 1 and PW 2) encountered three persons allegedly engaged in sale of arrack. One person fled; the two others were apprehended. The petitioner (first accused) was said to be holding a bottle containing liquid; the second accused was holding a glass. PW 1 tested the liquid by smell and taste and concluded it was illicit arrack. The police seized the bottle and glass, took a 150 ml sample for chemical analysis (which tested positive for ethyl alcohol), prepared a mahazar (Ext. P1), and registered F.I.R. (Ext. P2) as Crime No. 123/1998.

The Additional Assistant Sessions Judge, Alappuzha convicted the petitioner under S. 55(i) of the Kerala Abkari Act and sentenced him to rigorous imprisonment for three years and a fine of Rs. 1,00,000 (S.C. 346/1999). The second accused was also initially convicted by the trial court but the Sessions Judge, on re-appreciation, acquitted the second accused because the evidence only showed he was holding a glass and did not establish possession of illicit arrack. The petitioner challenged his conviction and sentence by filing a revision after the Sessions Judge confirmed the conviction (Crl. A. 221/2001).

A key procedural fact precipitating the revision was that the final report (as required by S. 50 of the Kerala Abkari Act) was submitted to the court not by the Sub Inspector of Police of Edathwa (the police station within whose territorial jurisdiction the alleged offence occurred) but by PW 7, the Sub Inspector of Veeyapuram police station. The petitioner challenged the competency of PW 7 to submit the final report and argued that this rendered the cognizance, trial and conviction illegal.

Legal Issues Presented

  1. Whether a final report under S. 50 of the Kerala Abkari Act, filed by a Sub Inspector of Police who is not the Abkari Officer for the territorial jurisdiction where the offence occurred (here, Veeyapuram SI filing for an offence in Edathwa), is competent to confer jurisdiction on the Magistrate to take cognizance and to sustain subsequent trial and conviction.
  2. What is the legal consequence (jurisdictional effect) of taking cognizance on, framing charge from, and trying an accused where the final report has been submitted by a person who is not the Abkari Officer as defined under the Act and the relevant government notification (S.R.O. 321/1996)?

Arguments of the Parties

Petitioner's Arguments

  • The final report (Ext. P2) was submitted by PW 7, Sub Inspector, Veeyapuram, who is not the Abkari Officer empowered to file the final report under S. 50 of the Kerala Abkari Act for an offence committed within the jurisdiction of Edathwa Police Station.
  • Under S.R.O. 321/1996 a Sub Inspector is appointed an Abkari Officer only within his respective jurisdiction; therefore only the Sub Inspector of Edathwa (or a superior officer) could have submitted the final report for an offence in Edathwa.
  • Because PW 7 was not competent to submit the final report, the Magistrate had no jurisdiction to take cognizance, and the learned Assistant Sessions Judge and the Sessions Judge had no jurisdiction to try and convict the accused; the final report is to be treated as non est and the conviction must be quashed.
  • Reliance was placed on precedents of this court, including Subrahmaniyan v. State of Kerala (2010 (2) KLT 470) and Subash v. State of Kerala (2008 (2) KLT 1047).

Respondent's (Public Prosecutor's) Arguments

  • Relying on S.R.O. 321/1996, it was argued that all Sub Inspectors of Police (on and above the rank of Sub Inspector in charge of law and order and working in the general executive branch) were appointed Abkari Officers and therefore the final report submitted by PW 7 as an Abkari Officer was competent; accordingly, cognizance, trial and conviction were not vitiated.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Varkey v. State (1993 (1) KLT 72) Where the Excise Inspector (or officer) who filed the complaint had no authority to file it, the court has no jurisdiction to take cognizance or frame charge or try the accused; such trial is non est. The court followed this principle to conclude that if the final report was filed by one not authorised, the cognizance taken and subsequent proceedings are without jurisdiction and must be treated as non est.
Prabhakaran v. Excise Circle Inspector (1992 (2) KLT 860) Earlier Division Bench decision establishing that lack of authority in the officer who files the complaint deprives the court of jurisdiction. Relied upon as a predecessor to Varkey and applied to support the view that proceedings initiated on an unauthorized report are void.
Abdul Rehman v. State of Kerala (1995 (1) KLT 234 (F.B.)) Full Bench upheld the principle that an unauthorised complaint/ report deprives the court of jurisdiction. The opinion notes that the Full Bench upheld the earlier decisions and thereby reinforces the view applied in this case.
Subash v. State of Kerala (2008 (2) KLT 1047) When the Magistrate has no jurisdiction to take cognizance on a report filed by a person other than an Abkari Officer as defined under S. 50 of the Abkari Act, there is a total lack of jurisdiction and it is not a mere irregularity covered by Chapter XXXV CrPC but a total illegality; cognizance, trial, conviction and sentence are illegal. The court explicitly followed this decision and applied its principle to hold that the cognizance taken on the final report by PW 7 was illegal and the resulting proceedings were non est.
Subrahmaniyan v. State of Kerala (2010 (2) KLT 470) Applied the principle that a final report filed by a person who is not an Abkari Officer deprives the Magistrate of jurisdiction; trial held to be non est. The court noted that a learned Single Judge followed Subash and applied the same principle in Subrahmaniyan; this line of authority was followed in the present case.

Court's Reasoning and Analysis

The court undertook a statutory and factual analysis grounded in the text of the Kerala Abkari Act and the Government notification (S.R.O. 321/1996). The reasoning proceeded in these steps:

  1. Statutory requirement under S. 50(2): When investigation into an offence under the Abkari Act is completed, the Abkari Officer must forward to a Magistrate a report in the form contemplated by S. 173(2) CrPC. Thus competence to submit the final report is a statutory requirement.
  2. Definition and appointment of Abkari Officers: An "Abkari Officer" is defined in S. 3(2) and is an officer lawfully appointed or invested with powers under S. 4 or S. 5. Section 4 allows the Government to appoint officers by notification to control administration and to perform acts and duties mentioned in Ss. 40 to 53 inclusive. Section 5 enables rules regarding powers and duties and their delegation.
  3. Effect of S.R.O. 321/1996: The Government, exercising powers under S. 4, issued S.R.O. 321/1996 appointing "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" as Abkari Officers, but explicitly within their respective jurisdiction. The court interpreted "respective jurisdiction" to mean the territorial limits of the appointee's police station.
  4. Application to the facts: The alleged offence occurred within the territorial jurisdiction of Edathwa Police Station. Therefore, the Sub Inspector of Edathwa (or an officer superior to him) is the Abkari Officer competent to file the final report under S. 50 for that offence. PW 7 (Sub Inspector, Veeyapuram) was not the Abkari Officer for Edathwa.
  5. Defect in the final report: The final report submitted by PW 7 did not disclose any authority or power under which he submitted it in respect of Edathwa's jurisdiction. Although PW 7 asserted in evidence that he was authorised by the Circle Inspector under an order (No. 83/1998) to file the report, no such order was produced either with the report or at trial despite cross-examination on the point. The absence of any written or disclosed authority meant PW 7 had not established competence to submit the report under S. 50.
  6. Jurisdictional consequence: The court relied on binding/divisional and full bench authorities (Varkey, Prabhakaran, Abdul Rehman, Subash, and Subrahmaniyan) that treat the filing of a complaint/final report by a person lacking authority as resulting in lack of jurisdiction in the Magistrate to take cognizance, frame charge or try the accused — rendering subsequent proceedings non est. The court held that this line of authority applied squarely to the present facts.
  7. Conclusion of analysis: Because the final report was submitted by PW 7 who had not shown any authority to act as Abkari Officer for Edathwa, cognizance taken, charge framed, and the trial and conviction of the petitioner were illegal and non est. The proper consequence was to set aside the conviction and sentence.

Holding and Implications

Holding: The petition is allowed. The conviction and sentence of the petitioner (first accused) by the Additional Assistant Sessions Judge, Alappuzha in S.C. 346/1999, as confirmed by the Additional Sessions Judge in Crl. A. 221/2001, are set aside. The petitioner is set at liberty.

Implications:

  • Direct effect on the parties: The petitioner's conviction and sentence have been quashed and he has been released.
  • Jurisdictional principle applied: The court reaffirmed the principle (as established in earlier decisions cited) that where a final report required by S. 50 of the Kerala Abkari Act is submitted by a person who is not the Abkari Officer for the territorial jurisdiction of the alleged offence, the Magistrate lacks jurisdiction to take cognizance and subsequent proceedings (trial, conviction and sentence) are illegal and non est.
Show full summary ...

    Saji Kochumon v. State Of Kerala

    1. 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 S. 55(i) of Kerala Abkari Act by Additional Assistant Sessions Judge, Alappuzha in S.C 346/1999. The accused challenged the conviction and sentence before Sessions Court, Alappuzha in Crl. A. 221/2001. 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 PW 1 Sub Inspector of Police, Edathwa police station while on patrol duty along with PW 2 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 5.

    3. 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. PW 1 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 150 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 F.I.R was prepared and crime No. 123/1998 was registered. M.O.s 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 PW 7, Sub Inspector of Veeyapuram police station after verification though investigation conducted by PW 6, the Assistant Sub Inspector of Police, Edathwa Police Station.

    4. 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 S. 55(i) of Kerala Abkari 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 PW 1 the Sub Inspector of Police and Ext. P2 F.I.R 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 PW 7, who is the Sub Inspector of Veeyapuram police station. It is argued that under S. 50 of Kerala Abkari Act, PW 7 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 PW 7 is to be treated as non est. Learned counsel would point out that as per S.R.O 321/1996, though a Sub Inspector of Police in charge of law and order was appointed as Abkari Officer for the purpose of Ss. 31 to 35,38,40 to 53 and 59 of the Act, it is only within their respective jurisdiction and if that be so, final report could have been submitted only by the Sub Inspector of Police, Edathwa or a superior officer and not by PW 7, 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 Subrahmaniyan v. State Of Kerala (2010 (2) KLT 470) and Subash v. State Of Kerala (2008 (2) KLT 1047).

    5. Learned Public Prosecutor argued that under S.R.O 321/1996 all Sub Inspectors of police are Abkari officers and as the final report was submitted by the Abkari Officer, neither the cognizance taken nor the trial or conviction is bad.

    6. Sub-section (2) of S. 50 of Kerala Abkari Act provides that as soon as investigation into the offence under the Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-s. (2) of S. 173 of Code of Criminal Procedure. Abkari Officer is defined under S. 3(2), means Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under S. 4 or 5. S. 4 provide that Government may appoint an officer to control the administration of abkari department by notification in the gazette. Under clause (d) of S. 4 Government may by notification in the gazette appoint officers to perform the acts and duties mentioned in Ss. 40 to 53 (inclusive) of the Act. S. 5 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 Abkari 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 Abkari revenue in any law for the time being in force. S.R.O 321/1996 was issued in exercise of the powers conferred by S. 4 of the Act by the State Government. Under the S.R.O 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 Abkari Officers under the respective jurisdiction for the purpose of Ss. 31 to 35,38 and 40 to 53 and 59 of the Act and to exercise all the powers and discharge of all the duties conferred in Abkari Officer in the sections aforesaid. Therefore, by notification issued by the Government in exercise of the power provided under S. 4, a Sub Inspector of Police in charge of law and order and working in the general executive branch of police department is appointed as Abkari 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 Abkari Officer empowered by the Government to exercise the powers under Ss. 31 to 35,38 and 40 to 53 and 59 of Act. Therefore, the officer who is competent to file a final report as provided under S. 50 is only the Abkari Officer namely, Sub Inspector of Police, Edathwa or an officer superior to him.

    7. The final report was submitted before the court by PW 7, 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 Abkari Officer competent to exercise the power under S. 50 of the Abkari 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 S. 50 of the Abkari Act in respect of jurisdiction of Edathwa police station. Though from the witness box PW 7 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 PW 7 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 investigate or submit a report, it was not produced. If that be the case, it can only be found that PW 7 who laid charge is not the competent Abkari Officer authorised to file a final report as provided under S. 50 of Abkari 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 Abkari Officer authorised to file final report and the subsequent trial.

    8. The Division Bench of this court in Varkey v. State (1993 (1) KLT 72) following the earlier Division Bench decision in Prabhakaran v. Excise Circle Inspector (1992 (2) KLT 860) 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 non est, because it was done without jurisdiction. The Full Bench of this court in Abdul Rehman v. State of Kerala (1995 (1) KLT 234 (F.B)) upheld the decision. A later Division Bench in Subash v. State Of Kerala (2008 (2) KLT 1047) held that when the Magistrate has no jurisdiction to take cognizance of the case on a report filed by a person other than an Abkari Officer as defined under S. 50 of the Abkari 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 Abkari Officer and it is not an irregularity covered by Chapter XXXV of Code of Criminal Procedure 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 Subrahmaniyan v. State Of Kerala (2010 (2) KLT 470). In view of the legal position, it can only be found that cognizance taken on the final report submitted by PW 7 the Sub Inspector of Police, 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 non est. Hence it can only be set aside.

    9. Petition is allowed. Conviction and sentence of the petitioner, the first accused by Additional Assistant Sessions Judge, Alappuzha in S.C 346/1999 as confirmed by Additional Sessions Judge in Crl. A. 221/2001 is set aside. Petitioner is set at liberty.

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    Comments

    Saji Kochumon v. State Of Kerala
    (May 25, 2010)