IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 CRL.A.No. 336 of 2003() --------------------------------- SC.141/2002 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA .................... APPELLANT(S): ACCUSED 1 & 2 IN S.C.141/02 ----------------------- 1. THANKAVELU, S/O.PERUMAL, AGED 44 YEARS, K.P.VII/611, DENDUKOMBUKARA, KANTHALLOOR VILLAGE. 2. CHANDRAN, S/O.PONNUSWAMY, AGED 36 YEARS K.P.I/151, KULACHIVAYALKUDY, KANTHALLUR VILLAGE. BY ADV. MR.P.P.JACOB RESPONDENT(S): COMPLAINANT IN S.C. 141/02 ------------------------- STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE, MARAYOOR & REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 336 OF 2003 = = = = = = = = = = = = = = = Dated this the 13th day of August, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. District and Sessions Judge, Thodupuzha in S.C.141/02. Accused were charge sheeted for offences u/s 8(1) and (2) of the Abkari Act and were found guilty and convicted thereunder and sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default to undergo further imprisonment for a period of three months. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are: (1) Whether a prosecution will lie on an action of detection and seizure conducted by the Assistant Sub Inspector of Police? (2) Whether there is anything to interfere with the decision rendered by the Court below? Crl. Appeal NO. 336 OF 2003 -:2:- Points : 3. it is the case of the prosecution that on 18.5.00 at about 5.15 p.m. the accused were found in possession of 5 litres of arrack in a scooter-TN-O1-E/0205 on which they were riding. The Assistant Sub Inspector of Police, Marayoor had detected the crime. He has also conducted the major part of investigation and it was verified and charge was laid by the Sub Inspector of Police. Learned counsel for the appellant very strongly contends before me that an action will not lie on an initiation of proceedings by the Assistant Sub Inspector of Police for the reason that he is not an Abkari officer as contemplated under the Abkari Act. By Governmental notification SRO 321/96 it has been very clearly stated that so far as it relates to the Police Department, officers of and above the rank of a Sub Inspector of Police alone can act as Abkari Officers. An Assistant Sub Inspector of Police is a subordinate to a Sub Inspector of Police and therefore he does not come within the ambit of the notification SRO 321/96. This Court had the opportunity to consider this question in the following decisions like 2007 (4) KLT 169] Sabu V. State Crl. Appeal NO. 336 OF 2003 -:3:- of Kerala, [2008 (2) KLT 1047] Subash V. State of Kerala, and Unni V. State of Kerala [2009(1) KLD, 854]. In the decision reported in 2007 (4) KLT 169 this court held that an Assistant Sub Inspector of Police is not empowered to detect and investigate Abkari offences. This court further held that even if he was empowered as per the provisions of S.2(o) of Crl.P.C., he can not exercise the power conferred on an Abkari Officer. A Division Bench of this Court reported in Subash v. State of Kerala (2008 (2) KLT 1047) 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 also held that illegality or irregularity of investigation is different from lack of power to initiate the prosecution. Again in Unni V. State of Kerala reported in [2009(1) KLD, 854] a learned Judge of this court held that Assistant Sub Inspector of Police, as per the notification issued by the Government, is not authorized nor empowered to detect or investigate an abkari offence. So far as this case is concerned the detection and registration of the crime and Crl. Appeal NO. 336 OF 2003 -:4:- major part of the investigation is done by the Assistant Sub Inspector of Police who is not competent under the act to do so. Therefore the detection conducted by the Assistant Sub Inspector of Police is invalid in law and no action can be initiated on the basis of the same by a Court of competent jurisdiction and therefore the accused is entitled to be acquitted. In the result the Crl.Appeal is allowed and the conviction and sentence passed by the learned Sessions Judge u/s 8(1) and (2) are set aside and the accused are found not guilty and are set at liberty forth with. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 336 OF 2003 -:5:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 336 OF 2003 = = = = = = = = = = = J U D G M E N T 13th August, 2009