IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 CRL.A.No. 1122 of 2007(A) -------------------------------------- S.C. NO.777/2002 OF THE ADDL. SESSIONS COURT (ABKARI CASES), KOTTARAKKARA. ............. APPELLANT(S): ------------------------ ACHANKUNJU, S/O. MATHAN, C.NO.1622, CENTRAL PRISON, TRIVANDRUM. BY ADV. MR.BABU .P.C.(SB) RESPONDENT(S): ------------------------ STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR OF THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM. PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. Koshy,Ag.C.J. & V.Giri, J. ---------------------------------------- Crl.Appeal No.1122 of 2007 ---------------------------------------- Dated this the 5th day of March, 2009 Judgment Koshy, Ag.C.J. This case was referred by a learned single Judge in view of the difference of opinion expressed in Sabu v. State of Kerala (2007 (3) KLJ 157 = 2007 (4 KLT 169) and Vikraman v. State of Kerala (2007 (1) KLT 1010). A Division Bench of this Court in Subash v. State of Kerala (2008 (2) KLT 1047) upheld the decision reported in Vikraman’s case and held that the Magistrate can take cognizance of offence only if an abkari officer files the report and since in that case the abkari officer did not file the report, but, only by an Assistant Sub Inspector of Police who is not an abkari officer, the proceedings were set aside. In this case, it is seen from paragraph 7 of the impugned judgment that PW1 Sub Inspector of Police, Nallamunda Police Station conducted investigation and laid charge even though Assistant Sub Inspector of Police has detected the offence. Since the dispute between the two decisions reported in Sabu v. State of Kerala (2007 (3) KLJ 157 = 2007 (4) KLT 169) and Vikraman v. State of Kerala (2007 (1) KLT 1010) are upheld. We send back this case to the learned single Judge for a decision in Criminal Appeal on merit. J.B.Koshy Acting Chief Justice V. Giri Judge vaa