IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 CRL.A.No. 1968 of 2003() ------------------------ SC.21/2000 of ADDL. SESSIONS JUDGE, FAST TRACK (ADHOC-II), KOZHIKODE .................... APPELLANT : ACCUSED --------------------- CHANDRAN, S/O CHOYI, KATTUKUTHIYIL HOUSE, AYANIKKAD AMSOM DESOM, KOYILANDY TALUK. BY ADV. SRI.K.PRAVEEN KUMAR RESPONDENTS: COMPLAINANT AND STATE ------------------------------------ 1. THE A.S.I. OF POLICE, PAYYOLI. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.M.K. PUSHPALALTHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ........................................... CRL.A.NO.1968 OF 2003 ............................................. Dated this the 24th 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, Fast Track (Adhoc-II), Kozhikode in S.C.No.21/2000. It was a case detected, registered and charge sheeted by the Assistant Sub Inspector of Police, Payyoli police station. 2. It is the case of the prosecution that the accused was found to be in possession of 1.250 litres of Indian made foreign liquor and was apprehended and a case had been registered against him under Sections 55(a) and (h) of the Abkari Act. The trial court on a consideration of the materials found the accused guilty and sentenced him to undergo R.I.for two years and to pay a fine of Rs. One lakh and in default to undergo R.I for six months under Section55 (h) of the Abkari Act. It is against that decision, the accused has come up in appeal. 3. The points that arise for determination in the appeal are (1) whether the prosecution will lie on a detection and laying of charge by an Assistant Sub Inspector of Police (2) : 2 : CRL.A.NO.1968 OF 2003 whether conviction and sentence are sustainable. 4. Points 1 and 2: Heard the learned counsel for the appellant as well as the Prosecutor. It is the case of the prosecution that the accused was found in possession of 1.250 litres of Indian mad foreign liquor. The case had been detected, investigated and charge sheeted by the Assistant Sub Inspector of Police, Payyoli. The learned counsel for the appellant would contend before me that the word Abkari Officer used in Sections 31, 34 and 50 of the Abkari Act is the person who is authorised under notification SRO 321/1996. By the said notification, the Government of Kerala has notified that the officers of and above the rank of Sub Inspector of Police are Abkari Officers for the purpose of the Act. Here, admittedly the person who had detected the crime and laid the charge sheet is the Assistant Sub Inspector of police who is subordinate to the Sub Inspector of Police, This position has been considered by this court in the three decisions reported in Sabu v. State of Kerala (2007 (4) KLT 169), Subash v. State of Kerala (2008 (2) : 3 : CRL.A.NO.1968 OF 2003 KLT 1047) and Unni v. State of Kerala (2009 (1) KLD 854). In Sabus' case this Court held that the Assistant Sub Inspector of Police is not an authorised officer to detect and investigate an offence under the Act. The court also held that even if he was empowered as per the provisions of Section 2(o) Cr.P.C he cannot exercise the power conferred on an Abkari Officer. This matter again came up for consideration before a Division Bench of this court in Subash v. State of Kerala (2008 (2) KLT 1047). The Division Bench held that a Magistrate cannot take congnizance 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. The court further held that illegality or irregularity in investigation is different from lack of power to initiate prosecution. Again another learned Judge of this court in Unni v. State of Kerala (2009 (1) KLD 854) held that the Assistant Sub Inspector of police as per the notification by the Government is not authorised nor empowered to detect or investigate the Abkari offence. : 4 : CRL.A.NO.1968 OF 2003 5. So, in the light of the enunciated principles laid down in these decisions, it has to be held that the detection, investigation and charge sheet laid by an Assistant Sub Inspector of police is incompetent and on the basis of the same, a prosecution will not lie. Therefore, the conviction and sentence passed by the learned Sessions Judge requires interference. It is submitted the accused is found not guilty and therefore he is acquitted and set at liberty forthwith. The Criminal Appeal is allowed. M.N.KRISHNAN, JUDGE cl : 5 : CRL.A.NO.1968 OF 2003