IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 CRL.A.No. 889 of 2003() -------------------------------- SC.424/2000 of ADDL. DISTRICT AND SESSIONS JUDGE, FAST TRACK (ADHOC-II), KOZHIKODE ............................................................................... APPELLANT(S): ACCUSED -------------------------------------- M.V.NANU, S/O. KUNHIKRISHNAN, OTHAYATHU HOUSE, IYYANKODE AMSOM, DESAM, VADAKARA TALUK. BY ADVS. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.M.P.PRABHANANDAN RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.889 OF 2003 -------------------------- Dated this the 29th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against conviction and sentence passed in S.C. 424/2000 of the Addl.Sessions Judge, Fast Track Court (Ad hoc-II), Kozhikode. The accused was found guilty u/s.55(a) of Abkari Act, for possession of country made liquor. The case of the prosecution is that, the accused was found in possession of 2 bottles of 375 ml. arrack in a polythene bag from the road on the opposite side of Nadapuram Panchayat Community Hall and thereby had committed the offence punishable u/s.55(a) of Abkari Act. I am not considering the entire materials for the purpose of this appeal, for the reason that the learned counsel for the appellant had argued before me the decision reported in 2007 (1) KLT 845 in Mohanan V.State of Kerala. It was held in that case that, S.55(a) of Abkari Act deals with only illegal export, CRL.A.No.889 OF 2003 2 import or transport or transit or in possession of liquor and it is made very clear that possession should be of illicit transporting. In this case there is no such materials and so in the light of the decision, action u/s.55(a) of Abkari Act may not lie. But there are specific provisions under the Abkari Act such as S.8 (1) and (2) and another provisions under S.58 of Abkari Act. The possession of illicit arrack directly come under any of these provisions, as no charge is framed in those sections, it is not correct to convict the accused under those sections, without giving him an opportunity. When it is so then further contention raised that the person who had conducted investigation is not a proper Abkari Officer, as defined under the Act and so the prosecution is vitiated. This is a matter which can be looked into by the court, at the time of framing up the charge, so that a proper order can be passed then itself. Since the matter is going back and if the parties feel additional evidence is necessary, they are permitted to adduce the same in support of their contentions as well. Therefore, the criminal appeal is disposed of as follows :- CRL.A.No.889 OF 2003 3 1. The conviction and sentence passed u/s.55(a) of Abkari Act is set aside and the matter is remitted back to the Trial Court for consideration of, whether charges can be framed u/s.8 (1) or (2) u/s.58 of the Act and the court shall further consider whether the plea that, the Investigating Officer is not a competent officer as defined under the Abkari Act, is sustainable in the light of enunciated decisions rendered by this court and the parties shall also be permitted to adduce additional evidence in support of their respective contentions and the matter can be disposed of in accordance with law. In case the prosecution will not lie in the light of the incompetency of the Officer to investigate, the court is at liberty to pass appropriate order at that stage itself. The parties are directed to appear before the court below on 13.8.2009. M.N.KRISHNAN, JUDGE ami.