IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 CRL.A.No. 1090 of 2007(A) -------------------------------------- SC.88/2004 OF ADDL. SESSIONS COURT (ADHOC), KALPETTA. .................... APPELLANT: ------------------- MOHANAN, C.NO. 4848, CENTRAL JAIL, KANNUR. BY ADV. MR. C.T.JESTIN (STATE BRIEF). RESPONDENT: ---------------------- STATE OF KERALA, VELLAMUNDA POLICE STATION, CR.NO.184/02. BY PUBLIC PROSECUTOR SMT. MEERA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/03/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1090 of 2007 ------------------------------------------------ Dated this the 21st day of January, 2008 REFERENCE ORDER This is appeal filed by Convict No.4848, Mohanan of Central Prison, Kannur challenging the conviction and sentence passed against him under Section 55(a) of the Abkari Act (hereinafter referred to as the 'Act') by the Additional Sessions Judge (Adhoc)-I, Kalpetta in S.C.88/04 vide judgment dt.15/05/07. Advocate Sri.C.T.Jestin is appointed as counsel on State Brief to argue the appeal as the appellant has not engaged a lawyer of his choice to argue this appeal. 2. When the matter was taken up for final hearing, counsel on State Brief pointed out at the very outset that though the detection of the offence in the case was by the Sub Inspector, the investigation in the case was conducted by the Assistant Sub Inspector of Crl. Appeal No.1090 of 2007 -2- Police who under the Act is an incompetent officer and that therefore, the case itself is to end in an acquittal. According to the learned counsel, the investigation in the case being not conducted by an Abkari Officer, the conviction of the appellant for the offence under Section 55(a) of the Act cannot be sustained. 3. The argument is so advanced on the basis of a decision of this Court in Sabu v. State of Kerala (2007(3) KLJ 157). The said decision has been rendered subsequent to the decision of this Court in Vikraman v. State of Kerala (2007 (1) KLT 1010), wherein, the learned Single Judge, who disposed of the case, took the view that when detection was made by an Abkari Officer, the mere fact that an Assistant Sub Inspector of Police, who is not an Abkari Officer, conducted the latter part of the investigation and laid charge will not vitiate the trial. Crl. Appeal No.1090 of 2007 -3- 4. Public Prosecutor also points out that under S.R.O. No.321/96, what has been notified by the Government is appointing all Police Officers of and above the rank of Sub Inspector of Police in charge of law and order and working in the general execution branch of Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective jurisdiction for the purpose of certain sections under the Act, viz., Section 31 to 35, 38, 40(2), 53 and 59 and not in relation to Sections 55 to 58 and therefore, in relation to offence under Section 55(a) and (i) of the Act, the bar may not operate. However, he also submits that the matter has been referred by a learned Single Judge of this Court in Crl.A.No.184/03 for decision by a larger Bench; that accordingly, the matter has come up for consideration before a Crl. Appeal No.1090 of 2007 -4- Division Bench of this Court and that therefore, this case also be referred to be placed before a larger Bench. 5. In view of the facts of the case and submissions as aforestated, I am of the view that for an authoritative pronouncement, the matter has to be placed before a larger Bench. 6. Place the matter before the Honourable The Chief Justice for orders. K.P.BALACHANDRAN, JUDGE kns/-