IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 CRL.A.No. 947 of 2003() --------------------------------- SC.145/2000 of 145/2000 ADDL. DIST.& SESIONS COURT, MANJERI. .................... APPELLANT(S): ACCUSED: ---------------------- A.SHANMUGHAM, S/O. RAMAN, MARANCHERRY AMSOM, VADAMUKKU DESOM, MARANCHERI, MALAPPURAM DISTRICT. BY MR.T.KRISHNAN UNNI, SENIOR ADVOCATE RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.947 OF 2003 ------------------------------ Dated this the 4th day of August, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge (Adhoc), Fast Track Court No.I, Manjeri in S.C.No.145/2000. The accused was charge sheeted for an offence under Section 55(a) of the Abkari Act and was convicted and sentenced thereunder and was directed to undergo R.I for three years and to pay a fine of Rs. One lakh and in default to undergo further imprisonment for a period of one year. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are (1) whether prosecution will lie on a charge sheet filed by the Assistant Sub Inspector of Police (2) whether there are materials to hold the accused guilty for the offence under Section 55(a) of the Abkari Act. 3. Points 1 and 2: Heard the learned counsel for the appellant as well as 2 CRL.A.NO.947/03 the Prosecutor. It is the case of the prosecution that the accused was found in possession of 15 bottles of Indian made foreign liquor in a plastic bag kept for sale unauthorisedly in a corner of the kitchen of his house on 18.3.1999. In this case, detection and seizure were done by the Sub Inspector of police and investigation and laying of charge later was done by the Assistant Sub Inspector of Police. 4. Learned counsel for the appellant would argue that only a person who is an Abkari Officer as contemplated under the provisions of the Abkari Act alone is competent to detect, seize, investigate and lay the charge before the court. An Abkari Officer has been notified by the Government by SRO No. 321/1996. So far as it relates to the police officials, only officers of and above the rank of Sub Inspectors can be Abkari Officers for the purpose of the Act. 5. The matter has been dealt in detail by this court in the decision reported in Sabu v. State of Kerala (2007 (4) KLT 169), Subash v. State of Kerala (2008 (2) KLT 1047), and also in Unni v. State of Kerala (2009 (1) KLD 854). There was a 3 CRL.A.NO.947/03 different note struck by one of the Judges of this Court in the decision reported in Vikaraman v. State of Kerala (2007 (1) KLT 1010). In Vikaraman's case, the learned Judge held that the mere fact that the Assistant Sub Inspector conducted later part of the investigation and laid the charge will not vitiate the trial. But, this matter was considered by a Division Bench in Subash's case and this Court held that on a plain reading of Section 50 of the Abkari Act, the Magistrate has no jurisdiction to take cognizance of the case as the report was filed by a person other than the Abkari Officer. Hence, Vikaraman's case cannot be accepted as an authoritative decision. As per the mandate under Section 50, the Magistrate cannot take cognizance of the report filed by a person other than an Abkari Officer. 6. An officer other than Abkari Officer as defined under the Act cannot file a report even if investigation is conducted by an Abkari Officer. In the light of this authoritative pronouncement it has to be held that the prosecution launched on the basis of the report filed by the Assistant Sub 4 CRL.A.NO.947/03 Inspector of Police is totally inconsistent with Section 50 of the Abkari Act and so the prosecution will not lie. So, the inevitable conclusion is to acquit the accused on that sole ground. Therefore, the criminal appeal is allowed. The conviction and sentence passed against the accused under Section 55 (a) of the Abkari Act is set aside and he is found not guilty, acquitted and set at liberty forthwith. M.N. KRISHNAN, JUDGE cl 5 CRL.A.NO.947/03 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.947 OF 2003 ------------------------------ 4th day of August, 2009 JUDGMENT