IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 CRL.A.No. 2071 of 2003() ------------------------ SC.661/1999 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM .................... APPELLANT(S): ACCUSED. ---------------------- MOHANAN, S/O.SIVADASAN, MOHANAVILASOM, VADAKKUMBHAGOM MURI, THEKKUMBHAGAM VILLAGE, KOLLAM. BY ADV. SRI.SHABU SREEDHARAN SRI.P.A.NOOR MUHAMMED SRI.CHARLES VARGHESE RESPONDENT(S): COMPLAINANT. --------------------------- STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal.No.2071 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of June, 2009 JUDGMENT In this appeal, the accused in Sessions Case No.661/99 of Additional Sessions Judge (Adhoc II), Kollam challenges his conviction under Section 55(a) of the Abkari Act and sentence to undergo rigorous imprisonment for four years and to pay a find of Rs. 1 lakh, in default, to undergo simple imprisonment for a further period of one year. 2. The case of the prosecution as shaped in evidence before the lower court was that on April 7, 1999 at about 2 p.m., the appellant/ accused was found in possession of 15 bottles of Indian made foreign liquor on the eastern side of the temple compound of Thekkumbhagom Panakkakodi temple at Thekkumbhaghom and thereby committed an offence punishable under Section 55(1) and (i) of the Abkari Act. The appellant was arrested on the spot. The appellant pleaded not guilty to a charge under Section 55(a) and 55(i) of Abkari Act before the lower CRA.No.2071/03 2 court. PWs 1 to 5 were examined, Exts.P1 to P4 were marked on the side of the prosecution before the lower court. When questioned under Section 313 Cr.P.C by the lower court, the appellant/accused pleaded innocence. On the side of the appellant, Exts.D1 and D2 were marked. The lower court on an appreciation of evidence found the appellant guilty of the offence punishable under Section 55(i) of the Abkari Act, convicted him and sentenced him as aforesaid. The accused has now come up in appeal. 3. The learned counsel for the appellant argued that the charge was laid by the Assistant Sub Inspector of Police- PW6 and he has also detected and investigated the case, that he is not an authorised officer as contemplated under Section 50 of the Abkari Act and that therefore the entire prosecution is vitiated and the appellant/accused has to be discharged. 4. I find force in the above contention. 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 authorised officer as provided under Section 50 of the Abkari Act and that he is not CRA.No.2071/03 3 authorised to detect, investigate or lay the charge under the Abkari Act. In the light of the principles laid down in the above decision, I am of the view that even taking cognizance of the offence by the Magistrate is illegal and that the entire trial is vitiated. In the result, the appeal is allowed. The trial, conviction and sentence in this case 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 Abkari Act who is specially empowered under Section 50 of the Abkari Act. Fine, if any remitted shall be refunded to the appellant. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. CRA.No.2071/03 4