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. 950 of 2006 ------------------------------ SC.90/2002 of ADDL.SESSIONS JUDGE (ABKARI) KOTTARAKKARA. ........................................ APPELLANT(S): ACCUSED ------------------------------------- PRAVEEN SEKHAR @ SUNI, S/O. SOMASEKHARAN PILLAI, VASANTHA MANDIRAM, UMMANNOOR MURI, KOTTARAKKARA TALUK. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE SRI.BINDU SREEKUMAR RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ........................................... CRL.A.NO.950 OF 2006 ............................................. Dated this the 19th day of August, 2009 J U D G M E N T This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge, (Abkari), Kottaraka in S.C.No.90/2002. The accused was charge sheeted for the offences under Sections 55 (a) and (i) of the Abkari Act and was convicted under Section 55(a) red with Sections 8(1) and (2) of the AbkariAct. He was sentenced to undergo S.I for two years and to pay a fine of Rs. One lakh and in default of payment of fine, to undergo further S.I for three months. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are (1) whether the detection conducted by the Assistant Sub Inspector of Police is legal, proper and valid to initiate the proceedings (2) is there anything to interfere with the decision rendered by the court below. 3. Points 1 and 2: Heard the learned counsel for the appellant as well as : 2 : CRL.A.NO.950 OF 2006 the Prosecutor. The learned counsel for the appellant would submit before me that it is the Assistant Sub Inspector of Police who had detected the offence and seized the materials and therefore an action cannot be allowed to continue for the reason that he is not competent to do so. The learned counsel had pointed out the word Abkari Officer used in Sections 31,34 and 50 of the Abkari Act. By governmental notification S.R.O.No.321/96, the police officers who are of and above the rank of Sub Inspector of Police are vested with the power of an Abkari Officer under the Act. So, it is contended that any detection or investigation conducted by an officer inferior to the rank of Sub Inspector of Police is incompetent to initiate the prosecution. This matter has been considered by this Court in at least three decisions which are referred to as follows: 4. In Sabu v. State of Kerala (2007 (4) KLT 169) a learned Judge of this Court held that an Assistant Sub Inspector of Police is not an authorised officer to detect and investigate an offence under the Act. The court also went on to the extent of holding that even if he was empowered as : 3 : CRL.A.NO.950 OF 2006 per the provisions Section 2(o) of the Cr.P.C, he cannot exercise power conferred on the Abkari Officer. The matter came up again for consideration by a Division Bench of this Court in Subash v. State of Kerala (2008(2) KLT 1047). It was held by this court 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. It was further held that illegality or irregularity in investigation is different from lack of power to initiate the prosecution. Again, a learned Judge of this Court in the decision reported in Unni v. State of Kerala (2009 (1) KLD 854) held that Assistant Sub Inspector of Police as per the notification issued by the Government is not authorised nor empowered to detect or investigate the abkari offences. 5. So, in the light of the three authoritative pronouncements, it has to be held that when a crime is detected and investigated by an Assistant Sub Inspector of Police which is involved under the provisions of the Abkari Act, no action can be initiated on the basis of such detection : 4 : CRL.A.NO.950 OF 2006 or investigation of the crime. So, the inevitable conclusion is that the prosecution cannot be launched against the accused which means he is entitled to an acquittal. 6. Therefore, the conviction and sentence passed by the court below under Section 55(a) of the Abkari Act read with Sections 8(1) and (2) of the Abkari Act are set aside and the accused is found not guilty. He is acquitted and set at liberty forthwith. M.N.KRISHNAN, JUDGE cl : 5 : CRL.A.NO.950 OF 2006