IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 CRL.A.No. 1514 of 2003() --------------------------------- (AGAINST THE JUDGMENT IN S.C.74/2001OFADDITIONAL SESSIONS JUDGE, (FAST TRACK COURT No.1) PALAKKAD DATED 1.09.2003 ) . ............................... APPELLANT/ACCUSED NO.3: ----------------------------------------- ALI S/O. CHERUTHU RAWTHER, THOTTAMKULAM VEEDU, NEMMARA, CHITTUR TALUK. BY ADVS. SRI. P.VIJAYA BHANU & SRI. M. RAFIQ RESPONDENT: COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT. M.K. PUSHPALATHA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03 /07/ 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ln M.N.KRISHNAN, J. ------------------------- CRL.A.NO. 1514 OF 2003 ------------------------------------- Dated this the 3rd day of July, 2009. J U D G M E N T This is an appeal preferred against the conviction and sentence passed in S.C. No. 74 /2001 of the Additional Sessions Court ( Fast Track Court No.I), Palakkad. The accused along with others were tried for an offence u/s. 55(a) of the Abkari Act. The court found the accused guilty u/s. 55 (a) and held that the others were not guilty. The third accused was sentenced to undergo Rigorous Imprisonment for 4 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 third accused has come up in appeal. 2. Heard the counsel for the appellant as well as the public prosecutor. 3. The learned counsel for the appellant submits before me that the action will not lie in this case for the reason that the detection and investigation has been done by Assistant S.I. of police who is not competent to do the same under the provisions CRA.NO. 1514/2003 2 of the Abkari Act. If that contention is accepted then the prosecution has to go obviously for the reason that the crime is detected and investigated by person incompetent to do the same which will go to the root of the jurisdiction. The learned prosecutor also submits that the detection and investigation had been done by the Assistant Sub Inspector of Police but the final charge is laid by the competent officer and therefore, prosecution will lie, I may consider the question in the light of the decisions of this court. The first decision referred to is reported in (2007 (4) K.L.T 169) Sabu Vs. State of Kerala. In that decision the learned judge held that Assistant Sub Inspector of Police is not an authorised officer to detect the investigation of offence under the Act. The learned judge referred to the S.R.O.No. 321/1996 by which the Government has notified who are the Abkari Officers. So far as police officers are concerned only the person of the rank of Sub Inspector of Police and above are Abkari Officers for the purpose of the Act. The learned judge also held that even if Assistant Sub Inspector of Police was empowered as per the Provisions of Section 2(o) of the Cr.P.C, he cannot CRA.NO. 1514/2003 3 exercise the power conferred on an Abkari Officer. There was some difference of opinion in the decision reported in (2007 (1) KLT 1010) Vikraman Vs. State of Kerala. Another learned judge of this court held that the mere fact that Assistant Sub Inspector conducted later part of the investigation and laid charge will not affect the trial. So the matter came up for consideration before a Division Bench of this court in Subash Vs. State of Kerala reported in (2008 (2) K.L.T. 1047). This court 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 further held that the illegality or irregularity of investigation is different from the lack of power to initiate prosecution. In para VII of the Judgment Their Lordships' considered the decision reported in (2007(1) K.L.T. 1010) Vikraman Vs. State of Kerala held that " the mere fact that Assistant Sub Inspector conducted later part of investigation and laid charge will not vitiate the trial. We are of the opinion that on the plain reading of section 50 of the Abkari Act, the CRA.NO. 1514/2003 4 Magistrate has no jurisdiction to take cognizance of the case as the report was filed by a person other than the Abkari Officer. Vikraman's case cannot be acceptable as an authoritative decision that despite the mandate in Section 50 Magistrate can take cognizance on a report filed by a person other than a Abkari Officer. Again this court in the decision reported in (2009(1) K.L.D, 854) Unni Vs. State of Kerala considered the question regarding the detection of an offence by the Assistant Sub Inspector. This court held that Assistant Sub Inspector of Police, as per the notification issued by the Government, is not an authorised or empowered to detect or investigate the Abkari offence and that prosecution will not lie. The Supreme Court as early as in (2001 (1) K.L.T. 86) Roy Vs. State of Kerala held that in an offence under the N.D.P.S Act where the search and seizure by unauthorised officer it cannot form the basis of proceedings in respect of the offences under Chapter IV of the said Act. Use of such materials vitiates the trial. Since an Assistant Sub Inspector of police is not an Abkari Officer competent to detect, investigate or lay a charge under the CRA.NO. 1514/2003 5 provisions of the Abkari Act. Any action intiated on the basis of an act done by the Assistant Sub Inspector of Police will vitiate the trial fundamentally and therefore no valid prosecution will lie. As stated by me earlier here the fundamental aspect, namely detection and investigation are done by Assistant Sub Inspector which is without jurisdiction and therefore the inevitable conclusion, is that prosecution will not lie. The benefit should go to the accused. Therefore, without going into other materials it has to be held that the accused herein is entitled to an acquittal. Therefore, the conviction and sentence passed by the learned Sessions Judge is set aside. The accused is not found guilty under section 55(a) of the Abkari Act and is acquitted and set at liberty forthwith. The criminal appeal is disposed of accordingly. M.N.KRISHNAN,JUDGE. ln