IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 Crl.MC.No. 3585 of 2011() ------------------------- SC.1540/2010 of ADDL.SESSIONS COURT (ABKARI CASES)KOTTARAKKARA .................... PETITIONER(S): ACCUSED: ----------------------------------------- MANOJ KUMAR, S/O. KUNJAPPAN, PANDIYAZHIKATH VEEDU, NADUTHERIMURIYIL, RANDALUMOODU, NADAMBOOR, KOTTARAKARA. BY ADV. SRI.A.RAJASIMHAN RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.3585/2011 APPENDIX PETITIONER'S ANNEXURES: ANX.A1: CERTIFIED COPY OF THE FIR IN CRIME NO. 407/2010 OF KUNNIKODE POLICE STATION, KOLLAM. ANX.A2: CERTIFIED COPY OF THE FINAL REPORT IN S.C. NO.1540/2010 BEFORE ADDL. SESSIONS COURT(ABKARI CASES) KOTTARAKKARA. ANX.A3: TRUE COPY OF THE REPLY DATED NIL. RESPONDENTS' ANNEXURES: N I L /TRUE COPY/ P.S.TO JUDGE Kss N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.3585 of 2011 ----------------------------------- Dated this the 4th day of November 2011 O R D E R Petitioner is the sole accused in S.C.No.1540/2010 of Additional Sessions Court (Abkari Cases), Kottarakkara. The offences alleged against him are under Sec.6 of the Kerala Motor Spirit and High Speed Diesel Oil (Maintenance and Regulation of Supplies) Order, 1979 r/w Secs.3 and 7(i)(a)(ii) of Essential Commodities Act, 1955 and also under Sec.58 and 67(B) of Abkari Act. 67(B) of Abkari Act only deals with confiscation of the vehicle and other articles involved in the commission of offence. That is not a penal provision. Sec.58 deals with the possession of illicit liquor. 2. The learned counsel for the petitioner submits that the petitioner is only a driver of the autorickshaw. Simply because a passenger carried some articles (which the prosecution claims to be the spirit or illicit liquor), the driver of the autorickshaw cannot be held liable. Similarly, simply because a plastic can contained petrol or diesel carried by a Crl.M.C. No.3585 of 2011 -: 2 :- passenger, for that also, the petitioner cannot be held liable. Therefore, on facts itself the charge against the petitioner cannot be sustained. In this connection the learned counsel has also pointed out the last page of the final report filed by the police officer which itself makes it clear that during the investigation it was found that ‘Arishtam’ was carried to SMV Pharamacy, the Proprietor of which was one Chakrapani who had licence for conducting wholesale business of ‘Arishtam’. The Investigating Officer himself found that the ‘Arishtam’ was carried by a person engaged or appointed by the Proprietor of that Pharamacy. It is inconceivable how autorickshaw driver can be held liable for the offence if any committed by the passenger. Therefore, the charge against the petitioner cannot be sustained. 3. The learned counsel Sri.Rajasimhan has also argued that under the E.C.Act and also under the Abkari Act, the charge sheet cannot be laid by a police officer not below the rank of Sub Inspector of Police. Therefore, based on the charge sheet laid by a Higher Grade S.I. cognizance cannot be Crl.M.C. No.3585 of 2011 -: 3 :- taken. As per Annexure A3 (the reply received from the State Public Information Officer), the police officer who laid the charge sheet in this case was a Higher Grade S.I. and not a Sub Inspector of Police. In this connection, the decision in Baiju and others v. State of Kerala reported in [2011 (1) KHC 518] has also been relied upon. There, it was held : “In Subash v. State of Kerala (supra), Division Bench of this Court referred to Sections 2(3) and 50 of the Act to hold that a Magistrate cannot take cognizance of an offence under the Act based on a report filed by the Assistant Sub-Inspector of Police who is not an Abkari officer as defined under the Act and that illegality and irregularity in investigation is different from lack of power to initiate prosecution. In Subramaniyan v. State of Kerala (supra) question involved was power of an Assistant Sub-Inspector. Learned Judge held that Assistant Sub-Inspector cannot be treated as authorised or competent officer as contemplated under Sections 4(d) and 70 of the Act.” It was further held :- “Thus, going by the above decision in the light of the notification SRO No.321 of 1996 referred to above, it leaves me no doubt that the Assistant Sub-Inspector though given the grade of a Sub-Inspector but not being a Crl.M.C. No.3585 of 2011 -: 4 :- Sub-Inspector was not competent to investigate and submit final report in the case. If follows that investigation and submission of final report are without jurisdiction, not merely an irregularity or illegality and hence learned Magistrate could not have taken cognizance on such report.” Therefore, on that ground also the final report filed in this case cannot be sustained. If so, the cognizance taken by the learned Magistrate and further proceedings taken pursuant to such a final report has to be quashed. In the light of what is stated above, this Crl.M.C. is allowed. Further proceeding in S.C.No.1540/2010 before the Additional Sessions Court (Abkari Cases) Kottarakkara is quashed. N.K.BALAKRISHNAN, JUDGE. Jvt