IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 CRL.A.No. 308 of 2004 ----------------------------- SC.188/2000 of ADDL.SESSIONS COURT (ADHOC)-1, KASARAGOD ........................................ APPELLANT(S): ACCUSED ------------------------------------- PADIYIL KALLYANI, W/O. KUNHIRAMAN, VADAKKAMKUNNU, KANAKAPPALLI, BALAL VILLAGE. BY ADV. SRI.M.THAMBAN SMT.T.SUDHAMANI RESPONDENT(S): COMPLAINANT AND STATE ----------------------------------------------------------------- 1. THE STATION HOUSE OFFICER, VELLARIKUND POLICE STATION. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 308 OF 2004 = = = = = = = = = = = = = = = Dated this the 3rd day of August, 2009. J U D G M E N T This is an appeal preferred against the conviction and sentence passed by the Addl. Sessions Judge (Adhoc-I) Kasaragod in S.C.No.188/00. The accused was charge sheeted for the offence u/s 55(g) of the Abkari Act and was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- and in default to undergo further imprisonment for a period of six months. It is the case of the prosecution that on 21.12.98 at about 10.15 p.m. the accused was found in possession of 30 liters of wash in two tins hidden under the ground on the western side of the cow shed. The Assistant Sub Inspector of Police, Vellerikundu Police Station detected the crime and seized the wash. Thereafter investigation was done by the Sub Inspector of Police. Learned counsel for the appellant contends before me that in the light of the authoritative pronouncements of learned Judges of this Court in the various decisions the Assistant Sub Inspector is not a competent person to detect and seize an Abkari offence. She CRL.A.No.308 OF 2004 2 had referred to me Sections 31, 34 and 50 of the Abkari Act. An Abkari officer is a person who is as notified by the Government in SRO 321/96. So far as it relates to the police officers are concerned only officers of and above the rank of a Sub Inspector of Police are the Abkari officers as contemplated under law. An Assistant Sub Inspector of police cannot be classified as a Sub Inspector for the purpose of this Act. 2. In the decisions reported in 2007 (4) KLT 169 Sabu V. State of Kerala, [2008 (2) KLT 1047] Subash V. State of Kerala, and Unni V. State of Kerala [2009(1) KLD, 854] the matter has been considered in detail. In 2007 (4) KLT 169 where it was the Assistant Sub Inspector of Police who detected the crime and conducted the search. This court held that he is incompetent person in the light of the notification referred to above. This court also went on to hold that S.2(o) of the Cr.P.C. does not give any such power. The matter was considered again by a Division Bench of this court in 2008 (2) KLT 1047 where this court held that a Magistrate cannot take cognizance of an offence under the Act on the basis of a report filed by the Assistant Sub Inspector of Police who is not an Abkari Officer as defined under the Act. Illegality or irregularity CRL.A.No.308 OF 2004 3 in investigation is different from lack of power to initiate prosecution. When the search and seizure is conducted by incompetent person the action cannot be sustained. In the decision reported in Unni V. State of Kerala reported in [2009(1) KLD, 854] a learned Judge of this court held that an Assistant Sub Inspector of Police as per the notification issued by the Government is not authorized or empowered to detect or investigate Abkari offences. So in the light of these three authoritative pronouncements it has to be held that the Assistant Sub Inspector of Police is not a competent person to seize and detect Abkari offences as contemplated under the provisions of the Abkari Act and no action can be laid on the basis of the same. Therefore it is inevitable that the accused has to be acquitted in this case. Therefore the Crl.Appeal is allowed and the conviction and sentence passed u/s 55(g) is set aside and the accused is found not guilty of the offence u/s 55 (g). He is acquitted and set at liberty forthwith. M.N. KRISHNAN, JUDGE. ul/-