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. 1694 of 2003 ------------------------ S.C.250/2000 OF ADDL.SESSIONS (AD HOC) COURT-I, KASARAGOD APPELLANT(S): ACCUSED. ---------------------- V.KRISHNAN, AGED 62 YEARS, S/O.KUNHAN. VEMBIRINHAL HOUSE, MANJAKKAL, THEKKIL VILLAGE, KASARAGOD TALUK AND DISTRICT. BY ADV. SRI.M.SASINDRAN RESPONDENT(S): RESPONDENT. -------------------------- STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI JAYASURYA 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 1694 of 2003 -------------------------------------- Dated: JULY 7 , 2009 JUDGMENT The challenge in this appeal is to the judgment of the Additional Sessions Court (Ad Hoc-I), Kasaragod, dated 29th August, 2003, convicting the appellant/accused under section 55(a) of the Abkari Act and sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1 lakh, in default, to undergo rigorous 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 November 5, 1998 at about 6.30 p.m. the accused was found to be in possession of 60 packets of Karnataka made arrack near Manjekkal in Thekkil village and thereby he committed offence punishable under sec.55(a) of the Abkari Act. The accused was arrested on the spot. 3. The Judicial Magistrate of First Class, Kasaragod, took cognizance of the case as CP No.317/1998 and committed the CRL.APPEAL 1694 of 2003 2 same to the Sessions Court, Kasaragod, from where it was initially made over to the Assistant Sessions Court, Hosdurg. Thereafter it was withdrawn and made over to the trial court for trial and disposal. The appellant/accused on his appearance before the trial court pleaded not guilty to a charge under sec.55 (a) of the Abkari Act. 4. P.Ws.1 to 4 were examined, Exts.P1 to P5 were marked and M.Os.1 to 3 were produced on the side of the prosecution before the trial court. P.W.1 was the then Head Constable of Kasaragod Police Station who accompanied the officer who detected the offence. P.W.2 is the attester to the mahazar who turned hostile. PW.3 is the then Sub Inspector of Kasaragod Police Station, who detected the offence. P.W.4 is the then Assistant Sub Inspector of Kasaragod Police Station, who investigated the case and laid the charge. When questioned by the lower court under sec.313 Cr.P.C., the appellant/accused denied the entire case of the prosecution. No defence evidence was adduced. 4. The lower court accepted the evidence adduced on the side of the prosecution and found the appellant/accused guilty of CRL.APPEAL 1694 of 2003 3 the offence punishable under sec.55(a) of the Abkari Act and convicted and sentenced him as aforesaid. The appellant/accused has challenged his conviction and sentence in this appeal. 5. Sri M. Sadindran, learned counsel for the appellant, argued that the Assistant Sub Inspector is not an authorised officer as per the notification issued by the Government under the Abkari Act and that therefore he is not authorised to conduct investigation and lay the charge and that therefore on that ground itself the appellant has to be acquitted. 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 authorised officer as per the notification issued by the Government and 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 CRL.APPEAL 1694 of 2003 4 that the appellant has to be discharged. I am not entering into the 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 entered and sentence imposed by the lower court against the appellant 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/-