JUDGMENT : A simple appeal from a conviction for an offence under the Abkari Act has thrown open issues of a demanding nature. The complex questions arise out of a submission by the learned counsel for appellant. Adv. Jacob Abraham in all fairness submitted that this appeal was not legally maintainable at the first instance itself and instead ought to have been preferred before the Sessions Court. 2. Appellant was the accused in S.C. No.233 of 2005 on the files of the First Additional Assistant Sessions Court, Kozhikode. He was tried for the offence under Sections 55(a) and 8(1) of the Abkari Act and was found guilty and sentenced to undergo imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for a period of three months. 3. The conviction and sentence imposed by judgment dated 29.10.2007 are challenged in this appeal, which was admitted on 6.11.2007. For the last 13 years, this appeal has been pending on the files of this Court. 4. The prosecution case was that on 18.12.2007, the accused was found in possession of four litres of arrack kept in a 10 litre can in his residential house and thereby committing the offence under Sections 55(a) and 8(1) of the Abkari Act, 1077. On conclusion of investigation, a final report was filed and the learned Magistrate on noticing that the case is exclusively triable by a Court of Session committed the case for trial to the Sessions Court under Section 209 of the Cr.P.C. 5. By order dated 23.3.2005, the Sessions Judge made over the case to the First Additional Assistant Sessions Court, Kozhikode, for trial and disposal. During trial, the prosecution examined PW1 to PW7 and marked Ext.P1 to Ext.P8, apart from the material object MO1. After conclusion of the trial, the Assistant Sessions Court found the accused guilty and imposed a sentence of imprisonment and fine, as mentioned earlier. 6. The learned counsel for the appellant commenced his arguments by pointing out that there is an inherent mistake in the appeal and that neither the appellant nor the registry of this Court had noted such a mistake, which according to him, was no doubt a bona fide one. 6. The learned counsel for the appellant commenced his arguments by pointing out that there is an inherent mistake in the appeal and that neither the appellant nor the registry of this Court had noted such a mistake, which according to him, was no doubt a bona fide one. The learned counsel pointed out that the trial having been conducted before an Assistant Sessions Court, the appeal lies only to the Sessions Court under Section 374 of the Cr.P.C. and not to the High Court. 7. Ordinarily, this Court ought to have relegated the appellant to prefer an appeal before the Sessions Court. However this case has been pending for the last 13 years on the files of this Court and it would be a travesty of justice to relegate the appellant, at this distance of time, to the Sessions Court, to pursue his appellate remedy. Since it was felt that a deeper consideration ought to be made, not only on the forum for appeal but also as to whether the Sessions Judge can make over cases under the Abkari Act to Assistant Sessions Court. Accordingly, Adv.M.P.Madhavankutty as well as Adv. Renjith P.Marar were appointed as Amicus Curiae to assist the court. 8. I have heard Sri.Jacob Abraham learned counsel for the appellant, Sri.P.K.Babu, learned Senior Public Prosecutor, apart from the learned Amicus Curiae, Sri.M.P.Madhavankutty, who filed written submissions also in support of his arguments and Adv.Renjith B.Marar, who filed written submissions. 9. The following points arise for consideration. (i) Can the Sessions Judge make over a case relating to an offence under the Abkari Act to an Assistant Sessions Court? (ii) To which court does an appeal lie from a judgment of conviction passed by an Assistant Sessions Court? (iii) If the appeal does not lie to the High Court ordinarily, do the circumstances in the present case require this Court to consider this appeal on merits? (iv) What orders are to be passed in the appeal on the merits of the case? Q.(i) Can the Sessions Judge make over the case relating to an offence under the Abkari Act to an Assistant Sessions Court? 10. It is necessary to consider in this context, the statutory scheme of Courts of Session. Chapter II of the Code deals with the Constitution of Criminal Courts and Offices. Q.(i) Can the Sessions Judge make over the case relating to an offence under the Abkari Act to an Assistant Sessions Court? 10. It is necessary to consider in this context, the statutory scheme of Courts of Session. Chapter II of the Code deals with the Constitution of Criminal Courts and Offices. It provides in Section 8 that there are four classes of criminal courts in our country, apart from the High Court and other Special Courts. The four classes of criminal courts are the Court of Sessions, Judicial Magistrates of First Class, Judicial Magistrates of Second Class and Executive Magistrates. The consideration, in this case, is confined to Courts of Session. Section 9 deals with the Court of Session and provides that every Court of Session shall be presided over by a Judge to be appointed by the High Court. In sub-clause (3) it is stated that the High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. Thus from Section 9(3) of the Code, it is clear that amongst the division of courts, Assistant Sessions Judge also falls within the Court of Sessions. 11. A detailed analysis of the expression 'Court of Session' and the distinction between Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge was considered by the Full Bench of the Patna High Court in District Bar Association, Civil Court, Patna v. State of Bihar and Others (2017 Crl.LJ 1). The said decision also held that the expression Court of Session would include the Assistant Sessions Judge also. 12. Section 10(3) of the Code deals with the subordination of Assistant Sessions Judges and explains that all Assistant Sessions Judges shall be subordinate to the Sessions Judge. For the purpose of easier comprehension, Section 10 is extracted below: “10. Subordination of Assistant Sessions Judges.-(1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction. (2) The Sessions Judge may, from time to time, make rules consistent with this Code, as to the distribution of business among such Assistant Sessions Judges. For the purpose of easier comprehension, Section 10 is extracted below: “10. Subordination of Assistant Sessions Judges.-(1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction. (2) The Sessions Judge may, from time to time, make rules consistent with this Code, as to the distribution of business among such Assistant Sessions Judges. (3) The Sessions Judge may also make provision for the disposal of any urgent application, in the event of his absence or inability to act, by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate, and every such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application. 13. Thus from a reading of Section 10(3), it is clear that the Sessions Judge can, for the purpose of disposal of any urgent applications or due to his absence or inability, distribute business not only amongst the Additional Sessions Judge but even amongst the Assistant Sessions Judges. 14. In the Chapter dealing with the power of courts, Section 26 provides for the courts by which offences are triable. Under Section 26(b), it is stated that an offence under any other law other than penal code shall be tried either by the court mentioned in that law or by the court shown in the First Schedule to the Code. The First Schedule to the Code provides as follows: II.CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS Offence Cognizable or Non-cognizable Bailable or non-bailable By what court triable If punishable with death, imprisonment for life, or imprisonment for more than 7 years Cognizable Non-bailable Court of Session 15. It can thus be seen that in a case relating to an offence under a law other than the penal code, where, the sentence of imprisonment is more than 7 years, the court that can try the offence as per the Code is only the Court of Session. On a reading of the above statutory provisions and appreciation of the scheme of the Code when read in conjunction with the Abkari Act, it can be understood that a Court of Session can try a case relating to an offence that prescribes punishment of more than 7 years. In this context, Section 28 of the Code would also be relevant and the same is extracted as below: “28. In this context, Section 28 of the Code would also be relevant and the same is extracted as below: “28. Sentences which High Courts and Sessions Judges may pass.-(1) A High Court may pass any sentence authorised by law. (2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court. (3) An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years 16. It is discernible from the above provision that an Assistant Sessions Judge can pass any sentence except a sentence of imprisonment for a term exceeding 10 years. It can thus be comprehended that under the scheme of the Code, an Assistant Sessions Judge can try an offence that is punishable up to 10 years. 17. Under Section 55 of the Abkari Act, the maximum punishment provided is 10 years and with fine for the offences committed under Sections 55(a) to 55(l) except 55(d) and 55(e). In that view of the matter, the Assistant Sessions Court is competent to try an offence under Section 55(a) of the Abkari Act and there is no irregularity if the Sessions Judge makes over the case for trial to an Assistant Sessions Judge. Q.(ii) To which court does an appeal lie from a judgment of conviction passed by an Assistant Sessions Court? 18. The answer to the above question is not complex since the statute itself provides the forum to which appeals lie. Section 374 deals with appeals from convictions. It states that appeal from a conviction on a trial held by any court in which a sentence of imprisonment of more than 7 years has been passed lies only to the High Court. Appeal from a trial conducted by a Sessions Court or an Additional Sessions Court lies to the High Court. However under Section 374(3), an appeal from a trial conducted by an Assistant Sessions Judge lies to the Court of Session. 19. Thus, it is obvious that an appeal from a conviction on a trial held before an Assistant Sessions Court lies to the Sessions Court if the sentence of imprisonment is 7 years or less than 7 years. However under Section 374(3), an appeal from a trial conducted by an Assistant Sessions Judge lies to the Court of Session. 19. Thus, it is obvious that an appeal from a conviction on a trial held before an Assistant Sessions Court lies to the Sessions Court if the sentence of imprisonment is 7 years or less than 7 years. In the instant case, the trial was conducted before an Assistant Sessions Judge and the sentence of imprisonment imposed was only one year and with a fine. Undoubtedly the appeal lies only to the Sessions Court and not to the High Court. Q.(iii) If the appeal does not lie to the High Court ordinarily, do the circumstances in the present case require this Court to consider this appeal on merits? 20. As mentioned earlier, this appeal has been pending on the files of this Court for the last 13 years. The registry had not noticed the mistake nor did this Court, while admitting the matter, realize that the appeal ought to have been filed before the Sessions Court. The mistake ought to have been identified by the Registry at the initial stage itself and it seems to have been omitted, possibly because of the manner in which the cause title in the judgment was written by the Assistant Session Court. If a hyper-technical approach is adopted, this Court ought to return the appeal for presentation before the proper court. However, I wish to adopt a different approach in the instant case and dispose of the appeal on merits itself. I am impelled by various factors available in this case to arrive at this conclusion. The pendency of this appeal for the last 13 years, the existence of appellate powers on this Court under Section 374 in cases where the sentence of imprisonment imposed is more than 7 years, the right to a speedy trial as an inherent facet of Article 21 of the Constitution, along with the power under Section 482 of the Code to secure ends of justice are those factors. 21. I am also fortified in my above conclusion by two judgments, which on a similar set of facts, proceeded to invoke the inherent power under the Code, to dispose of the appeals. 21. I am also fortified in my above conclusion by two judgments, which on a similar set of facts, proceeded to invoke the inherent power under the Code, to dispose of the appeals. Viswanadhan v. State of Kerala ( 2016 (3) KHC 38 ) was a case where the appeal was pending before this Court for 11 years, arising out of a conviction rendered by the Assistant Sessions Court in an offence under Section 8(1) of the Abkari Act. Instead of returning the appeal on technical grounds, this Court proceeded to hear and dispose of the case on merits. Similarly in the decision in Heeralal Ramlal Parmar and Others v. State of Maharashtra (1998 Crl.LJ 574) the Bombay High Court proceeded to hear an appeal against trial held before an Assistant Sessions Court, on the ground that the appeal was pending before the High Court for 7 years. 22. Thus, though the right of appeal is a creation of a statute and since the High Court exercises appellate powers under Section 374 of the Code, I am of the view that in exceptional circumstances, as in the present case, the High Court is not precluded from considering an appeal on merits, invoking the inherent power under Section 482 of the Code. While finding that the inherent powers of the court can be utilized to consider this appeal on merits, I hasten to add that this is not a procedure to be adopted as a matter of course. Q.(iv). What orders are to be passed in the appeal on the merits of the case? 23. Learned counsel for the appellant contended that the accused is entitled to be acquitted on the merits of the case since the prosecution had failed to prove the guilt of the accused beyond a reasonable doubt. The learned Public Prosecutor on the other hand argued in support of the conviction entered against the accused and sought for dismissal of the appeal. 24. PW1 was the detecting officer. He was the Excise Preventive Officer of the Excise Enforcement and Anti Narcotics Special Squad. PW5 was the Circle Inspector of the Special Squad, who registered the crime against the accused. PW7 was the Excise Inspector, who conducted the investigation and filed the final report. 25. 24. PW1 was the detecting officer. He was the Excise Preventive Officer of the Excise Enforcement and Anti Narcotics Special Squad. PW5 was the Circle Inspector of the Special Squad, who registered the crime against the accused. PW7 was the Excise Inspector, who conducted the investigation and filed the final report. 25. PW1 in his deposition stated that he was a Preventive Officer and on getting the information he proceeded to the house of the accused after preparing a search memo. Even though he had stated that he had prepared a memo and sent it to the Magistrate's Court, the same is not seen produced or marked in evidence. Even the copy of the said memo purported to have been prepared under Section 31 of the Abkari Act was not marked in evidence. 26. The normal procedure before searching a place is, as provided under Section 30 of the Abkari Act. Before searching a place on the basis of information received, a warrant must be obtained from a Magistrate, who must examine the informant and the statement must be reduced into writing. In circumstances where the search warrant cannot be obtained, the officer can take the benefit of Section 31 of the Abkari Act, under which, an Abkari officer must, before proceeding to search a place, make a record of the ground based on which he believes an offence under the Act has been committed. These are valuable safeguards for protecting the liberty of an individual. Compliance with such requirements forms the components of a just, fair, and reasonable procedure, as enshrined under Article 21 of the Constitution of India. Violation of Section 31 will therefore vitiate the search. A conviction based on an invalid search cannot stand the test of law. In K.L.Subhayya v. State of Karnataka (1979) 2 SCC 115 , the Supreme Court while considering similar provisions under the Mysore Excise Act held that “it is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of S.54 were not at all complied with. This, therefore, renders the entire search without jurisdiction and as a logical corollary vitiates the conviction. This, therefore, renders the entire search without jurisdiction and as a logical corollary vitiates the conviction. We feel that both Ss.53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill founded or frivolous prosecution or harassment”. The situation in the instant case is almost similar and the conviction of the appellant is therefore liable to be set aside. 27. There is yet another aspect of the matter which is of relevance when viewed in the light of the absence of the search memo. The independent witnesses, examined to prove the seizure and arrest of the accused in their evidence as PW3 and PW4, turned hostile to the prosecution. They stated that they had not seen the arrest or the seizure and that they were told to put their signatures on paper, for enabling the grant of bail to the accused. The cross examination by the Prosecutor could not cause any dent in the evidence they gave. In the absence of the memo under Section 31 and the lack of any credible independent evidence to prove the search and seizure of the contraband, the prosecution story becomes doubtful and the accused is entitled to be given the benefit of doubt. 28. Accordingly, the conviction and sentence imposed on the accused in S.C. No.233 of 2005 on the files of the First Additional Assistant Sessions Court, Kozhikode, is hereby set aside and the appellant is acquitted. The bail bonds, if any, executed shall stand cancelled and the fine amount, if any, remitted shall be refunded forthwith. 29. I place on record the appreciation of this Court on the illuminating arguments of Adv.M.P.Madhavankutty and the excellent notes submitted by Adv.Renjith P.Marar, the learned Amicus Curiae. The appeal is allowed as above.