IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 Crl.Rev.Pet.No. 1454 of 2002() ------------------------------ CRA.43/1999 of ADDL.SESSIONS COURT, ADHOC-1, KASARAGOD CC.1117/1996 of JUDL.FIRST CLASS MAGISTRATE -I , HOSDURG .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- P. KUNHIRAMAN, S/O. PAKKEERAN, AGED 41/2002, KOTTAKKUNNUTHATTE, KALLAR VILLAGE, HOSDURG TALUK. BY ADVS. SRI.V.RAJENDRAN SRI.P.SAMSUDIN RESPONDENT/RESPONDENT/COMPLAINANT/STATE: ----------------------------------------------------------------------------- STATE OF KERALA REPRESENTED BY THE S.I. OF POLICE, RAJAPURAM, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.BINDU R THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 1.6.2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl. R.P. No. 1454 of 2002 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 1st day of June, 2011 0 R D E R Challenge in this revision petition is to the judgment of the Judicial Magistrate of the First Class-I, Hosdurg in C.C.No.1117/1996 dated January 15, 1999 convicting the revision petitioner/accused under section 55(g) of the Abkari Act and sentencing him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.25,000/-, in default to undergo simple imprisonment for a further period of six months, which was confirmed in appeal by the learned Addl. Sessions Judge (Ad hoc-I), Kasaragod in Crl.A. No.43/1999 by judgment dated September 28, 2002. 2. The case of the prosecution as shaped in evidence before the trial court was that on on August 19, 1996 at about 7.15 p.m., the accused had kept 4 litrs of wash in his property in R.S. No.146/I and that thereby committed an offence punishable under section 55(g) of the Abkari Act. CRRP 1454/2002 2 3. The accused on appearance before the trial court pleaded not guilty to the charge under section 55(g) of the Abkari Act. PWs.1 to 5 were examined and Exts.P1 to P4 and MOI were marked on the side of the prosecution. When questioned under section 313 Cr.P.C. by the learned Magistrate, the accused denied the entire incident. On an appreciation of evidence, the learned Magistrate found the accused guilty of offence punishable under section 55(g) of the Abkari Act convicted him thereunder and sentenced him as aforesaid. On appeal by the accused the learned Sessions Judge, confirmed his conviction and sentence. The accused has come up in appeal challenging his conviction and sentence. 4. Heard the counsel for the revision petitioner and the Public Prosecutor. 5. Adv. Sri.V. Rajendran, the counsel for the revision petitioner mainly argued that the Assistant Sub Inspector of Police, Rajapuram Police Station (PW1) who conducted investigation has no authority to detect or investigate a CRRP 1454/2002 3 crime under the Abkari Act and that he is not the Abkari officer as contemplated under section 50 of the Abkari Act. There is force in the above argument advanced by the learned counsel for the revision petitioner. 6. A Division Bench of this court in Subhash V. State of Kerala ( 2008(2) KLT 1047) has held that the Assistant Sub Inspector of Police is not an Abkari officer as contemplated under Section 2(3) and Section 50 of the Abkari Act and that he is not competent to conduct investigation and laying the charge. In a recent decision in Baiju and others V. State of Kerala 2011(1) KHC 518) this court has held that the Assistant Sub Inspector of Police is not an authorized officer as per the notification issued by the Government and that he is neither empowered to detect nor investigate the Abkari offences. In the light of the principles laid down in the above decisions, I am of the view that the entire proceedings from taking cognizance, trial and sentence etc. are illegal and that the accused has to be discharged. I am not entering into the merits of the case as CRRP 1454/2002 4 the revision petitioner/accused has to be discharged on the above ground. 7. In the result, the revision petition is allowed. The conviction and sentence imposed by the trial court, which were confirmed by the lower appellate court against the revision petitioner/accused are set aside and the revision petitioner is discharged for lack of jurisdiction in taking cognizance of the case by the Magistrate in the absence of a report filed by the Abkari officer as defined under Section 5 (2) of the Act who is specially empowered under section 50 of the Abkari Act. Fine, if any, remitted by the revision petitioner/accused shall be refunded to him. His bail bonds are cancelled. P.Q.BARKATH ALI, JUDGE mn. CRRP 1454/2002 5 Crl.M.P. No. 8116/2002 in Crl.R.P. No. 1454 of 2002 Dismissed. 1-6-2011 P.Q. Barkath Ali, Judge. True copy P.S. to Judge. CRRP 1454/2002 6 P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ Crl. R.P. No. 1454 of 2002 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ 0 R D E R 1-6-2011