IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 CRL.A.No. 2042 of 2003() ------------------------ SC.363/2000 of ADDITIONAL DISTRICT AND SESSIONS JUDGE FAST TRACK .................... APPELLANT(S): ACCUSED: ----------------------------------------- JANAKY, W/O. RAJAN, KURIYADITHARAMMAL HOUSE, AYANIKKAD, PAYYOLI AMSOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): COMPLAINANT: ----------------------------------------------------- STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, PAYYOLI, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.M.K.HEMALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.Appeal.No.2042 of 2003 = = = = = = = = = = = = = = Dated this the 13 th day of October, 2009 JUDGMENT The appellant namely Janaki who was the sole accused in S.C.No.363 of 2000 on the file of the Additional District and Sessions Court Fast Track(Ad hoc-II), Kozhikode, challenges the conviction entered and the sentence passed against her for an offence punishable under Section 55(a) and 55(h) of the Kerala Abkari Act. 2. The case of the prosecution is that on 30.11.1999 at 6 p.m. the accused was found carrying 3 bottles each of 375 ml of Royal Gold Cup Whisky brought from Mahe for sale, on the western side of the house of one Gopalan at Ayanikad amsom and desom and the accused has thereby committed the aforementioned offences. 3. The prosecution altogether examined 4 witnesses as P.Ws 1 to 4 and got marked 9 documents as Exts.P1 to Crl.Appeal No.2042 of 2003 2 P9 and 2 material objects as MO1 series and MO2. 4. The learned Additional Sessions Judge, after trial, as per judgment dated 18.11.2003, acquitted the appellant of the offence punishable under Section 55(h)of the Act but convicted her of the offence punishable under Section 55(a) of the Abkari Act. For the said conviction she was sentenced to rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and on default to pay the fine to suffer rigorous imprisonment for six months. It is the said judgment which is assailed in this appeal. 5. It may be unnecessary for me to go into the merits of the case due to a basic flaw in the detection, search and seizure. 6. PW4 (P.C.Velayudhan Nair) who was the Assistant Sub Inspector of Police is the officer who detected the offence, arrested the accused and effected the search and seizure of the contraband liquor. The detection was on 30.11.1999. As per notification G.O(P) 69/96/TD dated Crl.Appeal No.2042 of 2003 3 29.3.1996 published as SRO 321/1996, officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department alone have been empowered to discharge the duties conferred and imposed on Abkari officers. The duties include detection, search and seizure of contraband articles. Admittedly, PW4 the detecting officer in this case was only an Assistant Sub Inspector of Police which is below the rank of a Sub Inspector and therefore not empowered to effect the search, seizure or arrest of the accused. 7. The detection by such an officer who is not empowered is wholly illegal and goes to the root of the matter. I am fortified by the decisions Sabu v. State of Kerala (2007(4) KLT 169), Subash v. State of Kerala (2008(2) KLT 1047 DB and Unni v. State of Kerala 2009 (1) KLD Crl.854. If so, the prosecution and conviction of the appellant were wholly illegal. Resultantly, the conviction Crl.Appeal No.2042 of 2003 4 entered and the sentence passed against the appellant cannot be sustained and are dislodged. The appellant is acquitted of the offences punishable under Section 55(a) of the Abkari Act and shall be set at liberty. Amounts, if any, deposited by the appellant towards fine shall be refunded to her. Dated this the 13th day of October, 2009. V. RAMKUMAR, JUDGE sj