IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 CRL.A.No. 187 of 2003() ------------------------------ SC.326/1999 of ADDL. SESSIONS COURT (ADHOC), KOZHIKODE .................... APPELLANT(S): ACCUSED: --------------------------------------- SASI, AGED 45, S/O. CHOIKUTTY, PURATHOLATH HOUSE, EDAKKARA AMSOM, KOLAKKAD DESOM, KOYILANDI TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.SANTHARAM.P RESPONDENT(S): COMPLAINANTS: -------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, JJ. ......................................... Crl.Appeal No.187 of 2003 ............................................ Dated this the 11th day of November, 2009 JUDGEMENT Challenge in this appeal by the accused is to the judgment of Additional District and Sessions Court Fast Track (Adhok-1), Kozhikode in Sessions Case No. 326 of 1999 dated 31.12.2002 convicting the accused under Section 55(a) and (i) of Abkari Act and sentencing him to undergo Rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for a further period of nine months. 2. The case of the prosecution as shaped in evidence before the trial court was that on 3.2.1999 at about 5.30 p.m he was found to be in possession of 3 ½ litres of illicit arrack for sale in a cannas on the side of Ottambalam road about 50 metres north of Athanical-Ottambalam Road Junction in Kolakkad Desom, Edakkara amsom and that there by committed the offence punishable under Section 55 (a) and (i) of Abkari Act. 3. The accused, on appearance before the committal court, was served with copies relied on by the prosecution. As the offence punishable under Section 55(a) and (i) of Abkari Act is exclusively triable by a Court of Sessions, the case was committed to Sessions Court Kozhikode, from Crl.Appeal No.187 of 2003 2 where it was made over to the Asst.Sessions Court, Koyilandy and later to the trial court for trial and disposal. 4. On appearance before the trial court he pleaded not guilty to a charge under Section 55(a) and (i) of Abkari Act. PWs. 1 to 6, Exts.P1 to P8 and MOs.I and MOII were marked on the side of prosecution. When questioned under Section 313 Cr.P.C by the learned Sessions Judge accused denied the incident. No defence evidence was adduced. 5. The trial court on an appreciation of evidence found the appellant guilty of the offence punishable under Section 55(a) of Abkari Act, convicted him thereunder and sentenced him as aforesaid. The accused has challenged his conviction and sentence in this appeal. 6. Heard the learned counsel for appellant and the learned Public Prosecutor. 7. The following points arise for consideration:- 1. Whether the conviction of the appellant under Section 55(a) of the Abkari Act can be sustained? 2. Whether the sentence imposed is excessive or not? 8. PWs. 1 to 6 were examined and Exhibits P1 to P8 and MOs.I and II were marked on the side of the prosecution to prove the guilt of the Crl.Appeal No.187 of 2003 3 accused. PW4 is the Sub Inspector of Police who detected the offence. PW5 is the Constable who accompanied PW4 for search and seizure. PWs. 1 and 2 are the independent witnesses. They have turned hostile and did not support the prosecution. PW6 is the Head Constable who conducted the investigation and laid charge before the court. 9. The counsel for appellant cited the decision in Sabu V. State of Kerala (2007 (4) KLT 169) & Subash V. State of Kerala (2008 (2) KLT 1047) and contended that the Head Constable is not an Authorised Officer as contemplated under Section 3 and 4 of Abkari Act to conduct investigation and that therefore accused should be discharged on that ground alone. I find force in the above contention. The Government by Notification No.S.R.O 321/96 dated 29/3/96 empowered all police officers above the rank of Sub Inspector of Police to discharge all the duties conferred on an Abkari Officer in this context. PW6 is only a Head Constable and is not empowered to detect or investigate an offence under Abkari Act. That being so, taking cognizance of the offence by the Magisgrate itself is illegal. The trial conducted and the conviction and sentence entered are illegal in the light of the principles laid down in the decisions cited above. That being so, the conviction and sentence of the Crl.Appeal No.187 of 2003 4 accused has to be set aside and he has to be discharged. In the result, appeal is allowed. The trial, conviction and sentence in this case are set aside and the appellant is discharged for lack of jurisdiction in taking cognizance of the case by the Magistrate as investigation was not couducted by an Abkari Officer as defined under Section 3(2) who is specially empowered under Section 50 of the Abkari Act. Fine amount, if any, deposited by accused before the trial court shall be refunded to him. His bail bonds are cancelled. P.Q. BARKATH ALI (Judge) mns