Investigation; Velutha Vs. Sub Inspector of Police [Kerala High Court, 25-01-2016]

Investigation – Territorial Jurisdiction – Whether a part of the investigation has been conducted by a Sub Inspector outside his territorial jurisdiction and whether that investigation report can be used for a conviction? Held, While conducting part of the investigation by an Abkari Officer outside the respective jurisdiction, a notification under Section 4 of the Act by the Government is necessary. If part of the investigation was conducted by the Sub Inspector who has no jurisdiction to exercise the power under S.31 to 35, 38, 40 and 53 of the Act outside his territorial jurisdiction. The investigation by the empowered officer outside his territorial limit and filing final report cannot be regarded as territorial defect. The section was enacted obviously for the purpose of protecting the citizen and avoid misuse by Police. The power delegated to the notified police, excise and revenue officers is not an empty formality. The Court below took cognizance of offence and framed charge against the accused, therefore the whole proceedings are null and void.

# Investigation


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.D. RAJAN, J.

Crl.Appeal No.1539 of 2005

Dated this the 25 th day of January, 2016

AGAINST THE JUDGMENT IN SC 319/2003 COURT of ADDITIONAL SESSIONS JUDGE (ADHOC)-1, KALPETTA DATED 10-08-2005

APPELLANT(S)/ACCUSED

VELUTHA, S/O.KULLYAN, MAIKKARA, MUTHANGA P.O., SULTHAN BATHERY. BY ADV. SMT.K.V.RESHMI

RESPONDENT(S)

1. THE SUB INSPECTOR OF POLICE, S.BATHERY POLICE STATION, (CRIME NO.292/2001). 2. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

BY PUBLIC PROSECUTOR SRI. N. SURESH.

JUDGMENT

The main challenge in this case is whether a part of the investigation has been conducted by a Sub Inspector outside his territorial jurisdiction and whether that investigation report can be used for a conviction?

2. This appeal is filed by the accused against the judgment of conviction in S.C.No.319/2003 by the Additional Sessions Judge (Adhoc)-I, Kalpetta for offence punishable under Section 55(a) of the Abkari Act (hereinafter referred to as the Act). The charge against the accused is that on 3.8.2001 the Sub Inspector of Police, Sulthanbathery conducted a joint raid with forest officers in the house No.VI/342 of Mykkara Paniya Colony, Muthanga and seized 5 litres of arrack from there. The accused was arrested and the contraband articles were taken into custody, reaching at the Police Station, he registered a crime. After completing investigation, the Sub Inspector of Police, Sulthanbathery laid charge before Judicial First Class Magistrate Court-I, Sulthanbathery, from there the case was committed to Sessions Court, Kalpetta.

3. In order to substantiate the case, prosecution examined six witnesses and marked Exts.P1 to P7 as documentary evidence. MO1 and MO2 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him, he did not adduce any defence evidence. The learned Additional Sessions Judge (Adhoc-I) convicted the accused u/s.55(a) of the Act and sentenced to rigorous imprisonment for one year and fine of ₹1 lakh, in default of payment of fine rigorous imprisonment for three months. Being aggrieved by that, he preferred this appeal.

4. The first contention advanced by Smt. Reshmi K.V., the learned counsel appearing for the appellant was that while conducting search inside the house without a search warrant, independent witnesses were not obtained by the searching officer. The seized articles were entrusted to S.H.O., Sulthanbathery, but he was not examined as a witness and no documents were produced to show that the articles were entrusted to SHO, Sulthanbathery. There is delay of 14 days in sending the seized article to the Court.

5. In reply, Sri. N. Suresh the learned Public Prosecutor submitted that non obtaining of search warrant will not affect the credibility of the seized article, but the searching officer had properly considered the general principle regarding the search under the Act.

6. The general rule is that a house can be searched only after obtaining a warrant, which must be obtained from a Magistrate under S.30 of the Act, a search warrant may be obtained from a Magistrate or Commissioner of Excise upon information and after enquiry of the informant on oath. But S.31 says whenever the Commissioner of Excise or Abkari Officer not below the rank notified by the Government or any police officer not below the rank of Sub Inspector has reason to believe that any delay in obtaining a search warrant may cause concealment or destruction of evidence or facility for the escape of the offender, then the officer may search without warrant after recording the reason. Officers of and above the rank of Preventive Officers are competent to conduct searches without warrant under the Act. All Police Officers of and above the rank of Sub Inspector of Police working in the general executive branch of the Police Department under the respective jurisdiction are competent to conduct search as per SRO No.321/96, a notification issued under S.4 of the Act.

7. According to Kerala Abkari Manual Volume II, Chapter XXV deals with crime, detection, enquiry, trial and prosecution, Rules 11,14, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27, 28, 31, 32 and 35 deal with mode of conducting searches. In urgent situation any Abkari Officer notified by the Government may not be possible to obtain warrant from a Magistrate or Excise Commissioner, in this context, Rule 14 says he may, after recording the reason and ground for belief, enter and search any place. This position is explained under S.31 of the Act which reads as follows:

“31. Power to certain Abkari and Police Officers to search houses, etc., without warrant:- Whenever the Commissioner of Excise or any Abkari Officer not below such rank as may be specified by the Government in this behalf or any Police Officer not below the rank of Sub Inspector or a Police Station Officer, has reason to believe that an offence under this Act has been committed and that the delay occasioned by obtaining a search warrant under the preceding section will prevent the execution thereof, he may, after recording his reasons and the grounds of his belief at any time by day or night, enter and search any place and may seize anything found therein which he has reason to believe to be liable to confiscation under this Act, and may detain and search and if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of any offence under this Act.”

8. According to S.36 of the Act, all searches under the provision of the Act shall be made in accordance with the provisions of the Code of Criminal Procedure 1973, provided that person called upon to attend and witness searches shall include two persons neither of whom is an Abkari Officer, Police or Village Officer. It is imperative that the provisions of Code of Criminal Procedure(hereinafter referred to Code) are strictly and carefully observed while conducting searches. According to the Code searches shall be made in the presence of two respectable witnesses of the locality. Abkari Manual says if the Abkari Officer entertains an apprehension that the witness of the locality would be won over and hostile to the prosecution, he may take witness from elsewhere. Such witnesses taken from other places must be independent and respectable and their presence should be secured during trial and adduce evidence about the grounds of his apprehension. The articles received in the course of house search should be entered in the search list prepared on the spot, it must be carefully packed, labelled and sealed in the presence of the search witness and signed in the label affixed to each item. Their signature should be obtained at the foot of the search list and they should be called upon to prove their signature as witnesses. If the witnesses are not literate, the officer shall obtain their thumb impression only in the search list. There is no objection in taking the signature of the owner of the house or the person in charge of the house in the search list, provided the copy of the search list should be given to the owner of the house. 9. In this case, seizure of arrack was effected by PW3 the Sub Inspector of Police, Sulthanbathery. According to PW3 on 3.8.2001 at 9.15 a.m., while conducting joint raid with the forest officials, he got information that revision petitioner was keeping arrack in his house. He recorded his ground of belief, entrusted it to a Police Constable 1189 and reached at the place of occurrence. They searched the house No.VI/342 of Noolpuzha Panchayat and seized four litres of arrack from there. He took 300 ml each in three bottles as sample, affixed label on it and sealed it. The independent witness present there signed in the label. The balance arrack was sealed at the place of occurrence. Ext.P1 is the search list and Ext.P3 is the F.I.R. The accused was arrested and produced before Magistrate, on 17.8.2001 the seized articles were produced before Court as per Ext.P4 property list. Ext.P5 is the forwarding note prepared by him for sending the sample to the chemical examiner’s lab through Court. Even though he contended that he prepared a search memorandum and entrusted it to a Police Constable for forwarding it to the Court, that search memorandum was not produced before Court. Moreover, no label was found affixed in MO1.

10. The Forest Watcher PW2 and driver of the Forest Range Office, PW1 identified their signature in Exts.P1 and P2, supported PW3. The Kerala Excise Manual Vol II has given specific mention that while conducting search, the officer shall strictly and carefully observe the provisions of the Act and the Code of Criminal Procedure. There are several people residing at the place of occurrence, but their assistance was not obtained by PW3 at the time of search, on the contrary, he obtained the assistance of PW1 and PW2 are forest officials, who participated in the search. Another Forest Officer PW4 deposed that he was present at the time of search and seizure of MO1 and signed in Ext.P1 search list. In order to ensure the trust worthiness of search and seizure, the Sub Inspector, Sulthanbathery has to ensure the presence of independent and respectable witnesses of the locality at the time of search. They have no case that when they reached the house (Mykkara Paniya Colony), the independent and respectable witnesses were not available. A close perusal of the oral testimony of PW3, it is clear that he has not invited any person from the locality as a witness. When there was failure to obtain independent witness from the locality, the proceedings of search and seizure have become doubtful.

11. The second contention was that the Sub Inspector of Police, Ambalavayal has no jurisdiction to conduct investigation in an Abkari offence within the jurisdiction of Sulthanbathery Police Station. This legal infirmity in connection with the investigation by a non-empowered officer was not considered by the trial Court, therefore the final report is not admissible. The learned Public Prosecutor admitted that a part of investigation was conducted as per the direction of Circle Inspector. Now the question is whether the Circle Inspector of Police, Sulthanbathery has been given any power under Section 4 of the Abkari Act to give direction to conduct such investigation? The Sub Inspector, Ambalavayal was examined as PW6, he deposed that C.I., Sulthanbathery directed him to conduct investigation in this case, but no documents were produced in the trial Court to show that the Government conferred such power under Section 4 of the Act to the Circle Inspector. Obediently, PW6 arrived at the place of occurrence and prepared Ext.P2 scene mahazar. He questioned PC 1189, who carried the search memorandum to the Court, but what happened to the search memorandum has not been disclosed by him. The jurisdictional Sub Inspector, PW5 conducted further investigation, who obtained Ext.P6 ownership certificate from the Secretary, Noolpuzha Panchayat and sent sample to the chemical examiner’s lab through Court and obtained Ext.P7 chemical examiner’s result. After completing investigation, he laid charge before Court.

12. Normally investigation in an Abkari offence must be conducted by an abkari officer notified under S.4 of the Act within their jurisdiction. The notification has been issued by the Government of Kerala vide SRO No.321/1996, which reads as follows:

“SRO No.321/96.- In exercise of the powers conferred by Section 4 of the Abkari Act, 1 of 1077 the Government of Kerala hereby appoint all Police Officers of 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 and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective jurisdiction for the purposes of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 2, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the Sections aforesaid. This notification shall come into force with immediate effect. (GO(P) No.69/96/TD dt. 29/03/1996).”

As per the notification, the Sub Inspector of Police in charge of law and order, working in the general executive branch of the Police Department is authorised to act as Abakri Officer and he can exercise power within his ‘respective jurisdiction’ which means within the territorial limits of his police station. If any Sub Inspector conducts investigation outside his territorial limits without any authorisation under Section 4 of the Act and files any report, the Court has no jurisdiction to take cognizance of such offence on such report.

13. Wider powers have been given to police officers to make arrest and search under the Criminal Procedure Code (for short Code). The station house officers are required to discharge their duties in relation to detection, investigation and prevention of offences. The term ‘police station’ u/s.2(s) of the Code means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf. Under S.2(o) “officer in charge of a police station” means when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs any other police officer so present. This shows the duties of the station house officer for their prompt discharge. Section 36 of the Code says that Police Officers superior in rank to an officer in charge of a police station may exercise the same powers throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. The word “rank” in Section 36 comprehends the hierarchy of police officers. This key role given by the Code to police stations in the scheme of investigation and prevention of crime, but according to the Act, if a Sub Inspector conducts investigation outside territorial jurisdiction, without a notification under 4 of the Act it is invalid and void. As per the Act, C.I. can exercise his power throughout his local area, but he cannot give direction to a Sub Inspector to conduct an investigation outside the local jurisdiction without a notification under 4 of the Act.

14. The impact of investigation conducted by a nonempowered officer was discussed by this Court in

# Saji @ Kochumon v. State of Kerala [2010 (3) KLT 471]

and held as follows:

“6. The final report was submitted before the court by PW7, 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 PW7 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 PW7 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 PW7 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.

The above dictum was followed by a Single Judge in

# Narayanankutty v. State of Kerala, 2015 (1) KHC 702

and held that if the investigation is conducted by an incompetent officer, the Court has no jurisdiction to take cognizance of the offence. Therefore, framing charge must be treated as non est and it was done without jurisdiction.

15. In this case, the part of the investigation was conducted by the Sub Inspector of Police, Ambalavayal which is outside his respective territorial jurisdiction. While conducting part of the investigation by an Abkari Officer outside the respective jurisdiction, a notification under Section 4 of the Act by the Government is necessary. If part of the investigation was conducted by the Sub Inspector, Ambalavayal, who has no jurisdiction to exercise the power under S.31 to 35, 38 and 40 40 53 of the Act outside his territorial jurisdiction. The officer competent to conduct investigation is the Sub Inspector, Sulthanbathery or his superior officer. The investigation by the empowered officer outside his territorial limit and filing final report cannot be regarded as territorial defect. The section was enacted obviously for the purpose of protecting the citizen and avoid misuse by Police. The power delegated to the notified police, excise and revenue officers is not an empty formality. The Court below took cognizance of offence and framed charge against the accused, therefore the whole proceedings are null and void. Hence, the trial and conviction made by the Additional Sessions Judge-I must be treated as non est in the eye of law.

In the result, the conviction and sentence passed by the Additional Sessions Court-I, Kalpetta u/s.55(a) of the Abkari Act are set aside and the appellant is acquitted and set at liberty.

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