IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 CRL.A.No. 1925 of 2003 ------------------------ SC 116/2000 OF ADDL. DISTRICT & SESSIONS COURT, FAST TRACK (AD HOC – II), KOZHIKODE. APPELLANT/ACCUSED: -------------------------------- VIJAYAN, AGED 35 YEARS, S/O. ANDY, PUTHENPURAYIL HOUSE, CHAKKITTAPARA AMSOM, KOYILANDY TALUK. BY ADV. SRI.SANTHARAM.P RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI V. TEK CHAND THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/6/2009, THE COURT ON 07/07/2009 DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- CRL. APPEAL 1925 OF 2003 -------------------------------------- Dated: JULY 7, 2009 JUDGMENT This appeal is by the accused in Sessions Case No.116/2000 on the file of the Additional District and Sessions Judge (Fast Track Ad Hoc – II), Kozhikode, challenging his conviction under sec.55(a) of the Abkari Act and sentence to undergo simple imprisonment for one year and to pay a fine of Rs.1 lakh and in default to undergo simple imprisonment for a further period of six months. 2. The case of the prosecution as shaped in evidence before the lower court was that on April 30, 1999 at about 9.15 a.m. the accused was found to be in possession of 36 bottles of Indian Made Foreign Liquor (180 ml. each) behind the house bearing door No. CP V/482 of Muthukad in Chakkittapara panchayat without having any permit and thus committed the offences punishable under sec.55(a) of the Abkari Act, sec. 15 of Abkari Amendment Ordinance and Rule 9 of Foreign Liquor Rules. The CRL. APPEAL 1925 OF 2003 2 appellant was arrested on the spot. 3. Judicial Magistrate of First Class, Perambra, took cognizance of the case as CP No.15/1999 and committed it to the Sessions Court, Kozhikode. Initially the case was made over to the Assistant Sessions Court, Quilandy, and thereafter it was withdrawn and made over to the trial court for trial and disposal. The appellant/accused on appearance before the lower court pleaded not guilty to a charge under sec.55(a) of the Abkari Act and Rule 9 of Foreign Liquor Rules. P.Ws.1 to 4 were examined, Exts.P1 to P11 were marked and M.Os.1 and 2 were produced on the side of the prosecution before the lower court. When questioned by the lower court under sec.313 Cr.P.C., the appellant/accused denied the entire case of the prosecution. No evidence was adduced on the side of the accused before the court below. A photocopy of the identity card of the appellant was marked as Ext.D1. 4. The trial court on an evaluation of evidence found the appellant guilty of the offence punishable under sec.55(a) of the Abkari Act and Rule 9 of Foreign Liquor Rules, convicted him and sentenced him as aforesaid. The appellant has challenged his CRL. APPEAL 1925 OF 2003 3 conviction and sentence in this appeal. 5. Sri P. Santharam, learned counsel fore the appellant, argued that the investigation was conducted and the charge in this case was laid by PW.4, the then Assistant Sub Inspector of Police, that the Assistant Sub Inspector has no sanction to detect or investigate the crime under the Abkari Act, that he is not an abkari officer as contemplated under sec.50 of the Abkari Act and that therefore the appellant/accused has to be acquitted on that ground itself. There is force in the above argument of the learned counsel for the appellant. 6. A Division Bench of this Court in Subhash v. State of Kerala (2008(2) KLT 1047) has held that 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. The same principle has been upheld by this Court in Unni v. State of Kerala (2009(2) KHC 661). 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 CRL. APPEAL 1925 OF 2003 4 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 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 mt/-