IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 CRL.A.No. 1109 of 2003(C) -------------------------------------- SC.NO.39/2000 OF ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD. .................... APPELLANT/ACCUSED: ---------------------------------- P.K. RAJAPPAN, S/O. KESAVAN, POOVATHINKAL VEEDU, CHEMBAKULAMKUNNU, KARYOTTUCHAL, MALOM, KASARAGOD DISTRICT. BY ADVS. SMT.VIDYA, SMT.VIDYA. A.C. RESPONDENT/COMPLATINANT: ---------------------------------------------- STATE OF KERALA - SHO, VELLARIKUNDU POLICE STATION, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1109 OF 2003 = = = = = = = = = = = = = = = Dated this the 19th day of August, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed in S.C.39/00 of the Addl. Sessions Judge (Adhoc-I), Kasaragod. The case was charge sheeted for the offences u/Ss. 55(a) and (b) and (g) of the Abkari Act and was convicted thereunder and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- and in default to undergo 6 months imprisonment more. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are; (1) Whether the prosecution can be initiated on the basis of a search and detection by an Assistant Sub Inspector of Police? (2) Whether the finding of guilt is sustainable? Crl. Appeal NO. 1109 OF 2003 -:2:- Points 1 and 2: 3. Heard the learned counsel for the appellant as well as the respondent. It is submitted that there is an apprehension in the mind of the counsel for the appellant that the accused is no more but unfortunately he is not able to confirm it. Whatever it may be, since the question is to be decided on the legal technical ground I am proceeding to dispose of the case. Since the punishment takes in fine also as contemplated u/s 394(2) Cr.P.C. the appeal will not abate as well. Therefore I proceed to dispose of the matter in accordance with law. 4. It is the case of the prosecution that the accused was found in possession of 60 litres of wash and four litres of illicit arrack on 26.3.1999 from the kitchen of the house of the accused bearing No.BP/VI/290. The Assistant Sub Inspector of Police, Vellarikunndu had detected and seized the articles. The learned counsel for the appellant would submit that a prosecution will not lie on the following grounds. Crl. Appeal NO. 1109 OF 2003 -:3:- 5. U/Ss. 31, 34 and 50 of the Abkari Act it is only an Abkari Officer who is entitled to conduct the search, seizure and file a report before court. An Abkari Officer has been notified by the Government of Kerala as per a notification No. SRO 321/96 and officers of and above the rank of Sub Inspector of Police alone are Abkari Officers of the Police Department for the purpose of this Act. An Assistant Sub Inspector of Police does not come under the purview of that notification. This matter came up for consideration before this Court in three decisions, 2007 (4) KLT 169] Sabu V. State of Kerala, [2008 (2) KLT 1047] Subash V. State of Kerala, and Unni V. State of Kerala [2009(1) KLD, 854]. In the decision reported in 2007 (4) KLT 169 this court held that an Assistant Sub Inspector of Police is not empowered to detect and investigate Abkari offences. The court further held that even if he was empowered as per the provisions of S.2(o) of Crl.P.C., he can not exercise the power conferred on an Abkari Officer. Correctness of this decision came up for consideration before a Division Bench of this Court reported in Crl. Appeal NO. 1109 OF 2003 -:4:- Subash v. State of Kerala (2008 (2) KLT 1047). In that case it was held that a Magistrate cannot take cognizance of an offence under the Act on the basis of a report filed by Assistant Sub Inspector of Police who is not an Abkari Officer as defined under the Act. Illegality or irregularity of investigation is different from lack of power to initiate the prosecution. In a recent decision in Unni V. State of Kerala reported in [2009(1) KLD, 854] a learned Judge of this court held that Assistant Sub Inspector of Police, as per the notification issued by the Government, is not authorised nor empowered to detect or investigate an abkari offence. So in the light of these enunciated principles it has to be held that the detection conducted by the Assistant Sub Inspector of Police and registration of crime done by him is incompetent in law and no action can be initiated on the basis of the same by a Court of competent jurisdiction. Therefore the prosecution initiated is invalid in law and therefore the accused is entitled to be acquitted. Therefore the conviction and sentence passed against the accused u/s 55(a) (b) and (g) of the Abkari Crl. Appeal NO. 1109 OF 2003 -:5:- Act are set aside. He is found not guilty and acquitted of the offence and set at liberty. M.N. KRISHNAN, JUDGE. ul/-