IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 CRL.A.No. 1141 of 2003() ------------------------ SC.113/1999 of ADDL. SESSIONS COURT (FAST TRACK COURT 1) MANJERI .................... APPELLANT(S): ACCUSED NO.2 -------------------------- PATHINALIL CHANDRAN S/O. KUNHOONHU, NAIKANKOOLI, VAZHIKADAVU, MALAPPURAM DISTRICT BY ADV. SRI.BABU S. NAIR RESPONDENT(S): STATE -------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, VAZHIKADAVU POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRI TEK CHAND THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/6/2009, ALONG WITH CRA NO. 1159 OF 2003, THE COURT ON THE 6/7/2009 DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- CRL.APPEAL 1141 & 1159 OF 2003 -------------------------------------- Dated: JULY 6, 2009 JUDGMENT In these appeals accused 1 and 2 in Sessions Case No.113/1999 on the file of the Additional District and Sessions Judge (Ad Hoc) Fast Track Court No.I, Manjeri, challenge their conviction under secs.55(a) and58 of the Abkari Act and sentence to undergo rigorous imprisonment for five years each and to pay a fine of Rs.1 lakh each, in default, to undergo simple imprisonment for a further period of one month. 2. The case of the prosecution as shaped in evidence before the lower court was that on December 6, 1997 at about 6.50 p.m. on the Panchayath road leading from Narivalumunda angadi to the river the 1st accused was seen purchasing 5 litres of illicit arrack from the 2nd accused and that on seeing the police party the 2nd respondent ran away from the scene and the 1st accused was apprehended on the spot and that thereby they committed offences punishable under sec.55(a) of the Abkari CRL.APPEAL 1141 & 1159 OF 2003 2 Act. 3. The Judicial Magistrate of First Class, Nilambur, took cognizance of the case as CP No.48/1998 and committed it to the Sessions Court, Manjeri from where it was made over to the Assistant Sessions Court, Manjeri. Thereafter it was withdrawn and made over to the trial court for trial and disposal. 4. P.Ws.1 to 4 were examined, Exts.P1 to P10 were marked and M.O.1 was produced on the side of the prosecution. P.W.1 was the Sub Inspector of Police attached to Vazhikkadavu Police Station who detected the offence. PW.2 is the Police Constable who accompanied him. PW.3 is an independent witness to the search and seizure, who turned hostile and did not support the prosecution. PW.4 is the then Assistant Sub Inspector of Police, Vazhikkadavu Police Station, who investigated the case and laid the charge. When questioned by the lower court under sec.313 Cr.P.C., the appellants/accused denied the entire case of the prosecution. No defence evidence was adduced. 4. The trial court believed the evidence of Pws.1, 2 and 4 CRL.APPEAL 1141 & 1159 OF 2003 3 and found the appellants/accused guilty of the offence punishable under sec.55(a) of the Abkari Act and convicted and sentenced them as aforesaid. The accused persons have challenged their conviction and sentence in these appeals. 5. Learned counsel for the appellants argued that the Assistant Sub Inspector is not an authorised officer as per the notification issued by the Government under the Abkari Act and that therefore he is not authorised to conduct investigation and lay the charge and that therefore on that ground itself the appellants have to be acquitted. 6. A Division Bench of this Court in Subhash v. State of Kerala (2008(2) KLT 1047) has held that Assistant Sub Inspector of Police is not an authorised officer as per the notification issued by the Government and as contemplated under Section 2(3) and Section 50 of the Abkari Act and that he is not competent to conduct investigation and laying the charge. The same principle has been upheld by this Court in Unni v. State of Kerala (2009 (2) KHC 661). In the light of the principles laid down in the above decisions, I am of the view that the entire proceedings CRL.APPEAL 1141 & 1159 OF 2003 4 from taking cognizance, trial and sentence etc. are illegal and that the appellants have to be discharged. I am not entering into the merits of the case as the appellants/accused have to be discharged on the above ground. In the result, both the appeals are allowed. The conviction entered and sentence imposed by the lower court against the appellants are set aside and the appellants are discharged for lack of jurisdiction in taking cognizance of the case by the Magistrate in the absence of a report filed by the Abkari officer as defined under Section 5(2) of the Act who is specially empowered under Section 50 of the Abkari Act. Fine, if any, remitted by the appellants shall be refunded to them. Their bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE mt/-