IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 CRL.A.No. 2138 of 2003() ------------------------ SC.99/2002 of ADDL. SESSIONS COURT (ADHOC-I), THODUPUZHA .................... APPELLANT(S): ACCUSED --------------------- CHITTARASU,AGED 43 YEARS, S/O SUBRAMANIAN, 14 MURI LAYAM, ODK DIVISION, DEVIKULAM ESTATE, KDH VILLAGE. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.JAYASURYA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal.No.2138 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of June, 2009 JUDGMENT In this appeal, the accused in Sessions Case No.99/2002 on the file of additional Sessions Judge(Adhoc-I), Thodupuzha challenges his conviction under Section 8(1)(2) of Abkari Act and sentence to undergo rigorous imprisonment for three months and to pay a fine of Rs. 1 lakh , in default, to undergo simple imprisonment for a further period of three months. 2. The case of the prosecution as shaped in evidence before the lower court was that on March 10, 2001 at about 5.15 p.m., the appellant/accused was found to be in possession of 20 bottles of Arrack each containing 180 ml. in his house at ODK division at Devikulam and that thereby committed an offence punishable under Section 8(1) (2) of Abkari Act. 3. The Judicial Magistrate of First Class, Devikulam took the case on file as C.P.No.29/2001 and committed it to the Sessions Court, Thodupuzha from where it was made over to Assistant Sessions Court, Crl.A.No.2138/03 2 Thodupuzha where he pleaded not guilty of charge under Section 8(1) (2) of the Abkari Act. Thereafter, the case was withdrawn and made over to the trial court. PWs 1 to 7 were examined, Exts.P1 - P6 were marked and MO1 series were produced by the prosecution. When questioned under Section 313 Cr.P.C., the appellant/accused denied having committed any offence. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the appellant guilty of offence punishable under Section 8(1)(2) of the Abkari Act and sentenced him as aforesaid. The accused has come up in appeal challenging his conviction and sentence. 5. Sri.Jayasurya, learned Public Prosecutor appearing for the prosecution contended that the Sub Inspector was on leave and the Assistant Sub Inspector was in charge of the police station and that he is perfectly competent to conduct investigation and laying the charge. 6. The main argument advanced by the learned counsel for the appellant in this appeal is that, it is the Assistant Sub Inspector of Police who has detected the offence and conducted investigation and laid the charge who had no sanction to detect or investigate a crime Crl.A.No.2138/03 3 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 appellant. 7. 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 Unni v. State of Kerala ( 2009(2) KHC 661), this court has held that the Assistant Sub Inspector of Police is not an authorised 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 the appellant/accused has to be discharged on the above ground. In the result, the appeal is allowed. The conviction and sentence Crl.A.No.2138/03 4 imposed by the lower court against the accused are set aside and the appellant 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 appellant shall be refunded to him. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.A.No.2138/03 5