IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 CRL.A.No. 1606 of 2003() ------------------------------------ SC.274/1999 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM .................... APPELLANT(S): ACCUSED --------------------- 1. VICTOR S/O. GABRIEL, ULIAMAVILA VEEDU, THEKKEMURI, EAST KALLADA VILLAGE. 2. SURESH S/O. GABRIEL, ULIAMAVIL VEEDU, THEKKEMURI, EAST KALLADA VILLAGE. 3. SANTHOSH S/O. GABRIEL, ULIAMAVILA VEEDU THEKKEMURI, EAST KALLADA VILLAGE. BY ADVS.MR.K.S.MANU (PUNUKKONNOOR) MR.P.SREEKUMAR RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1606 OF 2003 = = = = = = = = = = = = = = = Dated this the 8th day of July, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed in S.C.274/99 by the Addl. Sessions Judge (Adhoc-II), Kollam. The case was charge sheeted for the offence punishable u/Ss.55(a) and 55(g) of the Abkari Act and the accused were sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for one year. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are; (1)Whether the prosecution is in accordance with the provisions of the Abkari Act and whether it will lie? (2) Whether there are sufficient materials to hold that the accused has committed the offence u/s 55(g) of the Act? (3) Whether the conviction and sentence requires interference? Crl. Appeal NO. 1606 OF 2003 -:2:- Points: 3. Heard the learned counsel for the appellant as well as the public prosecutor. It is the case of the prosecution that the police officials on information that the accused had possessed and manufactured illicit arrack in Ratheesh Bhavanam in Uliyanmila, proceeded to the spot and on seeing them at a distance of about 10 -15 feet the accused ran away and on search and seizure they were able to get possession of two liters of arrack and wash and other utensils and thereby they had been prosecuted for the offence. The principle point argued before me is the lack of jurisdiction to initiate the case itself. 4. I had perused meticulously Exts.P1 to P3 in the case. It is revealed that the detention, the search etc. had been done by Head Constable No.3128 of East Kallada Police Station on 12.10.97. It is argued that no prosecution will lie on the basis of this for the reason that he is not an Abkari officer as contemplated under the provisions of the Abkari Act. I had carefully gone through the provisions of S.31, 34 as well Crl. Appeal NO. 1606 OF 2003 -:3:- as S.50 of the Abkari Act. U/s 31 whenever the Commissioner of Excise or any Abkari officer not below such rank as may be specified by the Government in this behalf or any police officer not below the rank of a Sub Inspector, has reason to believe that an offence under the Act has been committed is at liberty to proceed. Similarly, S.34 also gives the power to the Abkari Officer and S.50 would show that it is the Abkari Officer who shall forward to the Magistrate a report in accordance with the provisions of law. So a combined reading of all these sections would make it crystal clear that the detection, search or seizure can be done only by an Abkari Officer as defined under the Act. Under SRO 321/96 the Government has made it very clear that only police officials of and above the rank of a Sub Inspector is entitled detect, search or proceed with the crime under the provisions of the Abkari Act. This matter has been considered by this Court in the following decisions. 5. In the decision reported in Sabu v. State of Kerala (2007 (4) KLT 169) the learned judge of this Court held that Assistant Sub Inspector of Police is not an authorized Crl. Appeal NO. 1606 OF 2003 -:4:- officer to detect and investigate an offence under the Act. This Court also held that even if he was empowered as per the provisions of S.2(o) of Cr.P.C. he cannot exercise the power conferred on an Abkari Officer. 6. A division Bench of this Court in Subash v. State of Kerala (2008 (2) KLT 1047) also considered the very same question and held that a Magistrate cannot take cognizance of an offence under the Act on the basis of a report filed by Assistant Sub Inspector of Police who is not an Abkari Officer as defined under the Act. The Court held that illegality or irregularity in investigation is different from lack of power to initiate prosecution. 7. Again in the decision reported in 2009 (1) KLD 854 Unni v. State of Kerala this Court reiterated that Assistant Sub Inspector of police is not empowered under the provisions of the Abkari Act to detect any crime and proceeding on the basis of such a detention and seizure is not proper. So unless Abkari Officer as contemplated under the Act proceeds in accordance with law, a prosecution cannot lie. Crl. Appeal NO. 1606 OF 2003 -:5:- Here, admittedly, as seen from the records available the whole thing is done by a Head Constable of Police accompanied by two police constables. It is totally devoid of power and therefore a case cannot be proceeded on the basis of such a detention or search. The inevitable conclusion is to give the benefit to the accused and therefore the conviction and sentence passed u/s 55(g) is set aside and the accused are found not guilty of the offence thereunder and therefore acquitted and set at liberty forthwith. If any fine amount is deposited the accused are entitled to receive back the same in accordance with law. M.N. KRISHNAN, JUDGE. ul/-