1. The revision petitioners are the accused Nos.1 and 2 in S.C No.755/2003 on the file of the Additional Assistant Sessions Judge, Thalassery and the appellant in Crl. Appeal No.287/2007 on the files of the Additional Sessions Court – I, Thalassery. The offence alleged against the accused is punishable under Section 58 of the Abkari Act, 1077 (hereinafter referred to as “the Act”).

2. The prosecution allegation in brief is that, on 15.06.2000 at 19.45 hours, the accused Nos.1 and 2 were found illegally transporting 700 liters of spirit in 21 plastic cans in Maruti vans bearing registration numbers TCV/7591 and BLB/2276 in front of the Lavanaya Engineering Works, Keezhur Amsom, Payancherimukku. Thus the accused Nos.1 and 2 are alleged to have committed the aforesaid offence.

3. On the appearance of the accused Nos.1 and 2, this trial come framed charge against the accused Nos.1 and 2 under Section 55 (a) of the Act. During the trial of the case, PW1 to PW6 were examined and marked Exts.P1 to P9. On closing the evidence of the prosecution, the accused were questioned under Section 313 (1) (b) of the Cr.P.C. They denied all the incriminating circumstances appearing in the evidence. When they were called upon to enter on their defence, no defence evidence was adduced.

4. On appreciation of the evidence, the trial court found accused Nos.1 and 2 guilty, convicted them and sentenced to undergo rigorous imprisonment for three years each and to pay a fine of Rs.1,00,000/- each for the offence punishable under Section 55 (a) of the Act and in default of payment of fine to undergo simple imprisonment for two years each. The appellate court partly allowed the appeal confirming the sentence and reducing the substantive sentence to rigorous imprisonment for two years each by sustaining the remaining part of the sentence. Feeling aggrieved, the revision petitioners are before this Court.

5. Heard Sri. C. P. Peethambaran, learned counsel for the revision petitioners and Sri. M. S Breez, learned Senior Public Prosecutor.

6. The learned counsel for the revision petitioners contended that the occurrence took place within the jurisdiction of Iritty Police Station and PW6, who was admittedly the Sub Inspector of the Police, Karikkottakary, conducted investigation in this case contrary to the provisions contained under Section 70 of the Act. Elaborating on the submission, the learned counsel for the revision petitioners contended that CW16, the Sub Inspector of Police, Iritty who filed the final report was not examined as a witness for the prosecution. It was further contended that PW4, the Detecting Officer did not sample the contraband in accordance with law. It was submitted that the specimen impression of the seal was not produced before the trial court to ensure a safe sampling procedure from the beginning to the end for comparison by the court. Added to this, the learned counsel for the revision petitioners contended that no sample seal was affixed in Ext.P1 seizure mahazar to prove the genuineness of the sampling alleged to have been done by PW4 in the presence of the witnesses. Thus it was argued that the link with the accused and the contraband were not proved against the accused highlighting the fact that no evidence was adduced to establish the ownership of the vehicles which carried the contraband article.

7. Per contra, the learned Senior Public Prosecutor contended that both the trial court and the appellate court concurrently held that the accused were found transporting 700 litres of spirit in 21 plastic cans in Maruti vans bearing registration numbers TCV/7591 and BLB/2276 contrary to the provisions contained under the Act and Rules framed thereunder. The learned Senior Public Prosecutor further submitted that concurrent findings of conviction and sentence are sought to be set aside in revision. Thus, it was argued that unless the findings are manifestly perverse or contrary to the evidence on record, it would not be just and proper to interfere in revision.

8. PW4, the Detecting Officer received reliable information on 15.06.2000 at about 9.30 p.m touching the illicit transportation of spirit in two Maruti vans which were parked in front of the Lavanya Engineering Works at Payancherimukku. Accordingly, PW4 along with the police party proceeded to the said place near Payanchery junction and found two Maruti vans parked in front of the Lavanya Engineering Works. PW4 stated that the accused were found sitting on the front seat of the van bearing Registration No.BLB-2276. On being questioned, accused Nos.1 and 2 stated that the vehicle was parked due to mechanical defects. However, on inspection of the vehicle, PW4 found 21 white cans duly covered with jute bags and each containing 35 liters of contraband spirit. Accordingly, the Maruti vans and the contraband were seized. Samples for chemical analysis was taken. It was sealed and affixed with a label containing the signature of the accused, witnesses and the Detecting Officer. PW4 also prepared Ext.P1 seizure mahazar at the spot. The accused were arrested, brought to the Police Station and registered Ext.P6, F.I.R, under Section 58 of the Act.

9. PW6 conducted investigation, questioned the witnesses and prepared Ext.P2 mahazar, Exts.P3, P4 body mahazars, Ext.P8 forwarding note etc. in the case.

10. Admittedly, the occurrence in this case took place within the jurisdiction of the Iritty Police Station. As per Section 70 of the Act, all notification and orders conferring powers, imposing duties and making appointments under the Act may respectively refer to the persons concerned specially by name or in virtue of their office or to classes of officials generally by their official titles, and all courts shall take judicial notice thereof. There is nothing on record to show that the Sub Inspector of Police Karikkottakary has jurisdiction to conduct investigation in respect of an Abkari offence within the jurisdiction of Iritty Police Station. When PW6 was examined before court, his competency to conduct investigation in respect of an offence within the Iritty Police Station has not been explained. 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. It pre-supposes that PW6 was incompetent to conduct investigation touching an offence relating to the Act within the jurisdiction of the Iritty Police Station. A learned single bench of this Court had occasion to consider an identical matter in Saji Kochumon v. State Of Kerala [2010 (3) KLT 471] and held that the Sub Inspector of Police authorised to act as Abkari officer within his jurisdiction alone is competent to exercise jurisdiction within the territorial limits of his Police Station. It goes without saying that he cannot travel beyond the territorial limits of jurisdiction and conduct investigation relating to an Abkari offence outside his jurisdiction. Hence, in the absence of an order conferring powers to conduct investigation, any investigation alleged to have been done by PW6 is illegal and without jurisdiction. Sub Inspector of Police, Iritty was appointed as the Abkari Officer within the Iritty territorial limits of his police station by notification SRO 321/1996 issued by the Government in exercise of power provided under Section 4 of the Act. Section 3 (21 A) of the Act defines the term police station. As per Section 3 (21 A), it includes any place which the Government may, by notification, declare to the police station for the purpose of the Act. Thus the respective jurisdiction could only be the jurisdiction of his police station.

11. The occurrence in this case was on 15.06.2000 and the final report was filed on 18.07.2002. There was inordinate delay in filing the final report before the court. As per Section 50 of the Act, every investigation into the offences under the Act shall be completed without unnecessary delay. As soon as investigation into the offences under the Act is completed, the Abkari officer is obliged to forward a report in accordance with Sub Section (2) of Section 173 of the Cr.P.C to a Magistrate empowered to take cognisance of the offence on a police report. In this case, the inordinate delay in filing the final report before the court has not been explained by the prosecution. Further, the then S.I of Police, Iritty who filed the final report before the court, was not examined as a witness for the prosecution.

12. No specimen impression of seal is seen affixed on Ext.P1 seizure mahazar prepared by PW4. Further specimen impression of sample seal was not produced as an Exhibit in this case. Under the circumstances, it is very difficult to hold that the sample of the contraband allegedly seized from the accused has, in fact, reached the chemical examiner for analysis. It appears from Ext.P9 that the six sealed bottles marked 1 to 6 in the laboratory each containing 375 ml. of clear and colourless liquid alleged to be spirit involved in Crime No.146/2000 of Iritty Police Station were received by the chemical examiner for chemical analysis. It is further stated in Ext.P8 that the seals on the bottles were intact and tallied with the sample seal provided. During the trial, the sample seal was not exhibited. There is nothing on record to indicate that the sample seal was affixed in Ext.P1 seizure mahazar. Thus, there is absolutely no evidence to establish that the prosecution has proved the sample seal or specimen impression of the seal alleged to have been affixed on the sample by PW4. In Rajamma v. State of Kerala [2014 (1) KLT 506] this Court held that in the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the accused.

13. Judged by the above standards, this Court is of the view that, both the trial court and the appellate court did not consider the above legal aspects and illegally convicted and sentenced the accused for the offence under Section 55 (a) of the Act.

Resultantly, this Criminal Revision Petition is allowed. The revision petitioners/accused is found not guilty for the offence punishable under Section 55 (a) of the Act and they are acquitted thereunder. Cancelling their bail bond, this Court directs that they be set at liberty. If any fine amount is deposited during the pendency of the proceedings, the same shall be refunded to the revision petitioners/accused in accordance with law. Pending applications, if any, stand disposed of.