1. The appellant is the accused in S.C. No.890 of 2004 on the files of the Additional Sessions Judge (Ad hoc-II), Kasargod. She was convicted by impugned judgment dated 18.12.2007 of offence punishable under Section 55(a) of the Abkari Act, 1077(for short 'the Act') and sentenced to undergo Simple Imprisonment for one year and to pay a fine of Rs.1,00,000/- with default sentence for six months.
2. The prosecution case is that on 15.02.2004 at 12.00 noon, the appellant was found in possession of 75 packets of Karnataka made illicit arrack carried in a plastic bag at the southern road margin of a public road in front of Adhur Police Station.
3. It is stated that based on a prior information that the appellant was transporting arrack in a private bus called 'Durga' the police party attached to Adhur Police Station came to the place of occurrence and waited for the bus to pass through the way. Finding that appellant was rushing out with a bag after getting down from the private bus 'Durga' bearing No. KL-15 B 9599, she was chased and the contraband was taken from her and inspected. On smell and taste of the liquor, it was found to be arrack. Immediately sample was taken from the liquor and she was arrested on the spot in the presence of witnesses. PW.5, detecting officer, Sub Inspector of Police, Adhur Police Station thereafter prepared Ext.P2, Seizure Mahazar at the spot signed by the independent witnesses. After fulfilling necessary legal formalities, the final report was submitted by the Sub Inspector of Police, Adhur Police Station before Judicial First Class Magistrate, Kasargod from where it was later committed to Court of Sessions, Kasargod.
4. After the case being made over to Additional Sessions Judge, Ad hoc-II, Kasargod, it came to be tried before him. The court below framed charge against the appellant for offence punishable under Section 55(a) of the Act and she pleaded not guilty.
5. On the side of prosecution, PWs.1 to 5 were examined and Exts.P1 to P8 were admitted in evidence. Despite an opportunity being given to the appellant, she did not choose to adduce any evidence.
6. After considering the entire evidence on record, the court below was satisfied that the prosecution succeeded in proving that the contraband liquor was in the possession of the appellant and she committed offence punishable under Section 55(a) of the Act.
7. When the matter came up in appeal before this Court, the learned counsel for the appellant raised an argument that the investigation in question was taken over by an officer, who cannot be termed to be an Abkari Officer within the meaning of Section 3(2) of the Act. The Investigating Officer, who was the Sub Inspector of Police, attached to Badiyadukka Police Station was examined in this case as PW.4. He deposed that by virtue of notification issued by Government of Kerala his power to investigate offences under the Abkari Act in fact stood confined to his station limit; but under the orders issued by the Deputy Superintendent of Police of Kasargod, he took over investigation of the crime in question, which occurred in a different territorial jurisdiction and prepared Ext.P3, Scene Mahazar and also questioned witnesses. Later, on completion of investigation, the Sub Inspector of Police, Adhur submitted final report before the Committing Court.
8. The learned counsel for the appellant submitted that the entire prosecution is vitiated inasmuch as the investigation in the present case was taken over and conducted by an officer, who was not empowered by law to conduct investigation of abkari offences committed within the territorial station limit of Adhur Police Station.
9. The learned Public Prosecutor also submitted that the investigation was conducted by PW.4 as per the order of the DYSP, Kasargod and as per the notification issued by the Government under the Act, his powers as Abkari Officer are confined only to the limit of Badiyadukka Police Station. In this connection, two decisions of this Court reported in Majeedkutty v. Excise Inspector, (2015) 1 KLT 624 as well as Suresh v. State of Kerala,2017 2 KHC 891 were brought to my notice by the learned counsel for the appellant. Those decisions do lay down the proposition of law that an Abkari Officer, not having jurisdiction over the territory in which the offence in question is committed, has no power under law to investigate into the offences that occur in the territorial limit of a different police station. In view of the legal position, it has to be held that the entire prosecution case stands vitiated. This legal position does not appear to have been brought to the notice of the court below. Accepting the legal position as aforesaid, I hold that this is a fit case where the appellant ought to have been found not guilty and absolved of the offence.
10. I hold that the impugned order of conviction and sentence suffers from illegality and it is liable to be set aside.
In the result, Crl.Appeal succeeds and reversing the impugned order, the appellant is held not guilty
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of offence punishable under Section 55(a) of the Act and is acquitted of the same. Her bail bond is cancelled and she is set at liberty. The learned counsel for the appellant submits that pursuant to the direction given by this Court to deposit specified amounts in connection with the order suspending sentence, an amount of Rs.10,000/- was deposited by the appellant before the court below. It is hereby directed that the court below will verify whether the amount lies in deposit and order refund of the same to the appellant, if such amount is in deposit.