1. Appellant is the accused in S.C.No.447/2001 of Thalassery Sessions Division, who faced trial for offence punishable under Section 55(a) of the
Abkari Act. By the impugned judgment, the Assistant Sessions Judge, Payyannur found him guilty and sentenced to undergo rigorous imprisonment for
three years and to pay a fine of Rs.1 lakh, in default to undergo simple imprisonment for one year. That finding is under challenge in this appeal
preferred under Section 374(2) of the Code of Criminal Procedure, in short 'Cr.P.C.'.
2. The prosecution allegation is that on 21.02.2001 at about 21.00 hours, the Sub Inspector, Payangadi police station and party found him possessing 10
ltrs. of arrack in a plastic can on the courtyard to his house bearing No.C-VII/526 at Kallakkamthodu in Kadannappally amsom. After seizing the item
and arresting the appellant, Crime 48/2001 of that police station was registered. On completion of investigation the charge sheet was laid before the
Judicial First Class Magistrate, Payyannur, where the case was taken on file as C.P.36/2001. After completing the procedural formalities, the learned
Magistrate committed the case to the Sessions Court, Thalassery, from where the matter was made over to the trial court.
3. After hearing counsel on both sides, the learned Assistant Sessions Judge framed charge alleging offence punishable under Section 55(a) of the
Abkari Act, read over and explained, which was denied by the appellant. He had engaged a counsel to defend him. He was on bail.
4. The trial court examined five witnesses for the prosecution as PWs 1 to 5. Exts.P1 to P7 were also marked. The material object was identified and
marked as MO1. On completion of evidence, when questioned under Section 313(1)(b) Cr.P.C., he reiterated his earlier stand of total denial and
submitted that he has no connection whatsoever with the material object. After enquiry under Section 232 Cr.P.C., when the court found that it is not
a case of 'no evidence', the appellant was called upon to enter on his evidence in defence. Pursuant to that call, one witness was examined as DW1.
After hearing counsel on both sides, the learned Assistant Sessions Judge found him guilty of the offence alleged and convicted and sentenced as
aforestated.
5. I heard learned counsel for the appellant and the learned Public Prosecutor. The trial court records were summoned and examined.
6. The learned counsel for the appellant submitted that the appellant is the victim of false implication; the place of occurrence is an isolated area near
a cashew plantation. No one from the neighbourhood was cited or examined, that the investigation was conducted by Sub Inspector, Taliparamba
police station, who is an incompetent officer. The counsel also pointed out that the Ext.P4 forwarding note does not bear seal so that Ext.P6 report of
the chemical examiner has no evidenciary value. Moreover, the property list is not proved, which is also fatal. Even though the trial court had found
that the items were produced before court on 23.02.2001, reason for keeping the same in police station that for perusal by the investigating officer
cannot be accepted. According to him, there is no guarantee that the item was kept in safe custody of a responsible officer.
7. Before considering the contentions, evidence of the prosecution can be stated in a nutshell. PW1 is the Sub Inspector, Payangadi police station, who
detected the offence. According to him, that day at about 8.30 p.m., he received information from Kallakkamthodu that people have apprehended one
Krishnan with arrack, following which he proceeded to the place with the police party. At 9 p.m., he found the appellant surrounded by a small crowd,
carrying 10 ltrs. of some liquid in a black can. He opened the can and tested its content by smelling and tasting and understood it to be arrack. The
appellant was arrested and MO1 material object was seized under Ext.P2 mahazar. After reaching back the police station, the crime was registered
and the forwarding note was prepared along with the requisition. He also proved the Ext.P6 report issued by the chemical examiner. The investigation
was conducted by the Sub Inspector, Taliparamba police station. According to him, there were about 5-8 persons surrounding the appellant. He had
kept the material object till 23.02.2001 enabling the investigating officer to examine the same.
8. PW2 independent witness has supported the prosecution case. According to him, he is a resident of that locality, he knows the appellant for the
previous 15 years; the appellant is a coolie and also engaged in making arrack. People in the locality had warned him against his illicit acts. That day,
he had intimated the matter over phone to the police station, that he had witnessed police seizing MO1 from the appellant. At that time other persons
were also present. He denied the suggestion that a false case was slapped on the appellant. PW3 another independent witness deposed having
attested the Ext.P2 seizure mahazar and also the label found on the MO1. PW4 is an attester to Ext.P7 scene mahazar. PW5 is the Sub Inspector,
Taliparamba police station, who prepared the Ext.P7 scene mahazar, examined the witnesses and conducted the investigation.
9. DW1 claims to be a native of the area who knew the incident. According to him, a few activists of the prohibition committee had collected a can
from the cashew plantation and then proceeded to the residence of the appellant. They alleged that the can belonged to the appellant which the
appellant denied. Then somebody informed the police, police reached there and questioned the appellant.
10. In other words, the oral testimony of independent witnesses, PWs 2 and 3 eminently support the evidence tendered by PW1, the detecting officer.
The testimony of PWs 1 to 3 suggest that the material object was seized from the possession of the appellant as alleged by the prosecution. Despite
this clear evidence, due to the follies committed by the investigating agency, this Court has no option but to acquit the appellant. Even though the
property list available in the case records was not marked, since the learned Judge has found that there is no delay in taking the items to the court,
there is no reason to interfere with the same. But two arguments raised by the learned counsel that the Ext.P4 does not bear the sample seal and that
the investigation was conducted by an incompetent officer are really formidable and cannot be brushed aside merely as technical contentions.
11. Ext.P4 does not bear the sample seal of the detecting officer or the investigating officer. True that Ext.P6 carries the stock statement that the
seals on the bottle were intact and found tallying with the sample seal provided, when such a contention is raised by the defence, its correctness
cannot be disputed as it is the fact that the forwarding note does not bear the seal. In umpteen number of judgments, this Court has held that if the
forwarding note does not bear the seal, it cannot be said beyond doubt that the very same sample collected from the spot of occurrence was sent for
analysis for forming opinion by the chemical examiner. It is trite that the sample seized and tested by the chemical examiner have to be correlated. In
the absence of seal in the forwarding note marked as Ext.P4, no amount of assertion will justify the claim of the prosecution that the very same
sample was tested for obtaining the report.
12. It is also obvious that investigation was conducted by PW5 Sub Inspector, Taliparamba police station. The incident had happened within the limits
of Payangadi police station. It is not known as to how Sub Inspector, Taliparamba could investigate the case. He is not a competent Abkari Officer as
far as Payangadi police station limits is concerned. He cannot get authority to investigate a matter happened in Payangadi police station limits unless
authorised by a competent authority. Here, the prosecution has no case that he stood so authorised. Therefore, this aspect also goes very much
against the prosecution.
13. Going by Section 4 of the Abkari Act, a Sub Inspector of police is in charge of law and order and working in the general executive branch of
police department, who is appointed as Abkari Officer, within his respective jurisdiction, to exercise the powers provided thereunder. In Saji @
Kochumon v. State of Kerala [2010 (3) KLT 471] it has been held that the respective jurisdiction could only be the jurisdiction of the Sub Inspector; it
can only be within the territorial limits of his police station. In other words, normally, Sub Inspector, Payangadi police station is the duly authorised
Abkari Officer within that police station limits. Unless authorised by a competent authority, Sub Inspector of Taliparamba police station will not get
jurisdiction to investigate the crime. Similarly, in Subhash v. State of Kerala [2008 (2) KLT 1047] it has been held that on the plain reading Section 50
of the Abkari Act, the Magistrate has no jurisdiction to take cognizance of the case as a report filed by a person other than an Abkari Officer. There
are reasons to think that cognizance was taken in this case on a report based on the investigation conducted by a police officer who was not
competent.
14. This is a classic instance which shows how the police by their inept handling could demolish a case which was otherwise strong. As noticed, the
case was initiated at the instance of the local public who were suffering nuisance by the acts of the appellant. They caught him red handed,
summoned the police and handed him over to the police along with the contraband. But the police acted in a most irresponsible manner and facilitated
the exoneration of the culprit. The infirmities pointed out are serious enough, sufficient to set aside the conviction and sentence imposed on the
appellant. Thus the appellant is entitled to get the benefit of doubt.
Giving the benefit of doubt, in reversal of the finding of guilt, the appellant is found not guilty and acquitted under Section 386(b)(i) Cr.P.C. He shall be
set at liberty. Bail bond shall stand cancelled. Fine amount, if any, realised shall be refunded.
Appeal is allowed.
