IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 CRL.A.No. 793 of 2003() --------------------------------- SC.400/2000 of ADDL. DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC-II), KOZHIKODE. .................... APPELLANT/ACCUSED --------------------------------- RAJAN, S/O. ANDY, AGED 38 YEARS, KITANGOTHU HOUSE, VANIMAL P.O., KOZHIKODE DISTRICT BY ADV. MR.SUNIL V.MOHAMMED RESPONDENT(S): ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 793 OF 2003 = = = = = = = = = = = = = = = Dated this the 17th day of July, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. Sessions Judge, Fast Track, Adhoc-II, Kozhikode in S.C.400/00. The accused was charge sheeted for the offence u/s 55(a) of the Abkari Act and was found guilty thereunder and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for a period of six months. It is against that decision the appeal is preferred. 2. The points that arise for determination in the appeal are; (1) Whether the prosecution as initiated is sustainable? (2) Whether the accused can be found guilty u/s 55(a) of the Abkari Act? Crl.A. 793 OF 2003 -2- Points: 3. It is the case of the prosecution that on 26/10/98 at about 8 p.m. the accused was found in possession of three bottles of 180 ml. Golden Star Brandy, one bottle of R.B. Brandy and one bottle of Queens Brandy meant for sale in Pondichery without the sticker of the Kerala Beverages Corporation. Prosecution was launched. It is true that the detection was done by the Sub Inspector of Police. But quite strangely the investigation and laying of the charge was done by the Asst. Sub Inspector of Police. As PW3 in the chief- examination itself he had deposed that he was the Asst. Sub Inspector of Police on the relevant date and that as per the instructions of the Sub Inspector of Police he had conducted the investigation and laid the charge before the police. Or in other words the investigation and charge has been laid by Asst. Sub Inspector of Police. Learned counsel for the appellant contends before me that the Assistant Sub Inspector is incompetent under the Abkari Act to do the same and therefore the prosecution will not lie. Crl.A. 793 OF 2003 -3- 4. S.50 of the Abkari Act specifically states that the Magistrate can take cognizance of the offence on a report filed by an Abkari Officer as defined under the Act. By virtue of the Governmental Notification in SRO 321/96 who are the Abkari Officers for the purpose of the Act has been stated by the Government. So far as it relates to the police department it is stated that officers of and above the rank of a Sub Inspector are Abkari Officers. So only from a Sub Inspector of Police and upwards the power is given as an Abkari Officer. Unfortunately in the case before me the investigation and laying of charge has been done by an Asst. Sub Inspector of Police who is not an Abkari Officer as defined under the Act. This matter has been considered by this Court in the various decisions. 5. In the decision reported in Sabu v. State of Kerala (2007 (4) KLT 169) the learned judge of this Court held that Assistant Sub Inspector of Police is not an authorized officer to detect and investigate an offence under the Act. This Court also held that even if he was empowered as per the Crl.A. 793 OF 2003 -4- provisions of S.2(o) of Cr.P.C. he cannot exercise the power conferred on an Abkari Officer. 6. In the decision reported in Vikraman v. State of Kerala 2007 (1) KLT 1010 another judge of this Court held: “When detection was made by Abkari Officer, mere fact that Assistant Sub Inspector conducted later part of investigation and laid charge will not vitiate the trial.” The facts of the present case is exactly within the four corners which is considered by the learned Judge. But the correctness of this decision and the decision earlier referred to was referred to a Division Bench and the Division Bench of this Court in the decision reported in Subash v. State of Kerala (2008 (2) KLT 1047) held: “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 illegality or irregularity in investigation is different from lack of power to initiate prosecution.” Crl.A. 793 OF 2003 -5- 7. The Division Bench also considered the correctness of the decision in Vikraman v. State of Kerala 2007 (1) KLT 1010 in paragraph 7 of the judgment and the Division Bench of this Court held as follows. “We are of the opinion that on the plain reading of S.50 of the Abkari Act, the Magistrate has no jurisdiction to take cognizance of the cases as the report was filed by a person other than an Abkari Officer. Hence, Vikraman's case cannot be acceptable as an authoritative decision that despite the mandate in S.50 Magistrate can take cognizance on a report filed by a person other than an Abkari Officer.” 8. So in the light of this decision also the present action will not lie. Later another judge has considered the point regarding the power of Assistant Sub Inspector in the decision reported in 2009 (1) KLD 854 Unni v. State of Kerala in that case this Court held that Assistant Sub Inspector of Police as per the notification issued by the Government is not authorised or empowered to detect or Crl.A. 793 OF 2003 -6- investigate an Abkari offence. So in the light of these decisions it clearly emerges that an Assistant Sub Inspector of Police being not an Abkari Officer authorised under the Abkari Act is incompetent to detect, investigate or lay charge in relation to an Abkari offence. Therefore it has to be held that the action by the Assistant Sub Inspector of Police in the present case is lacking jurisdiction which cuts at the root of the prosecution and therefore the prosecution will not lie. Hence the Crl.Appeal is allowed and it is found that the accused is not guilty of the offence u/s55(a) of the Abkari Act. He is acquitted and set at liberty forthwith. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 793 OF 2003 -7- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 793 OF 2003 = = = = = = = = = = = J U D G M E N T 17th July, 2009