SAJI ALIAS KOCHUMON Vs. STATE OF KERALA

JUDGEMENT

(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 Section 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 PW1 Sub Inspector of Police, 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 PW5. 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 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 FIR was prepared and crime No.123/1998 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 Sub Inspector of Police, 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 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 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 50 of Kerala Abkari 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 SRO.321/1996, though a Sub Inspector of police in charge of law and order was appointed as Abkari Officer for the purpose of Sections 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 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 Subrahmaniyan v. State of Kerala, 2010 2 KerLT 470) and Subash v. State of Kerala, 2008 2 KerLT 1047).