IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 CRL.A.No. 770 of 2005 -------------------------------- SC.NO.255/1999 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM, CP.NO.65/1998 OF JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM. .................... APPELLANT/ACCUSED: ---------------------------------- SIVADASAN, S/O. MADHAVAN, PALAMOOTTIL VEEDU, HOUSE NO.1506, WARD NO.7, MEENATHUCHERRY, SAKTHIKULANGARA, KOLLAM DISTRICT. BY ADVS. DR.K.P.SATHEESAN, MR.K.K.GOPINATHAN NAIR, MR.M.R.JAYAPRASAD. RESPONDENT/STATE & COMPLAINANT: ---------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, EAST POLICE STATION, KOLLAM. R1 & R2 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 770 OF 2005 = = = = = = = = = = = = = = = Dated this the 30th day of July, 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-II) Kollam in S.C.No.570/99. The Assistant Sub Inspector of Police, Kollam East Police Station had conducted the search, detected the offence and filed the charge sheet against the accused. The learned counsel for the appellants strongly contends before me that the Assistant Sub Inspector of Police is not a competent officer to detect, investigate or lay the charge sheet in an Abkari offence in the light of the Government order or notification SRO 321/96. Here the detection is admittedly done on 3.6.1998 which is after the said date. Under the provisions of the Abkari Act the persons competent to detect, search, investigate and lay charge are the Abkari Officers as defined under the Act. An Abkari Officer is a person to be notified by the Government. Therefore the Government by its notification SRO 321/96 defined who are all the Abkari Officers. So far as it relates to the Police Department it was stated that only officers of and CRL.A.No.770 OF 2005 2 above the rank of a Sub Inspector of Police shall be Abkari Officers for the purpose of this Act. A Further reading of Sections 31, 34 and 50 of the Abkari Act would make it clear that only an Abkari Officer is entitled to do the acts mentioned in the Section. Now, relying upon the various decisions of this Court reported in 2007 (4) KLT 169] Sabu V. State of Kerala, [2008 (2) KLT 1047] Subash V. State of Kerala, and a recent decision of the learned Judge of this Court reported in Unni V. State of Kerala [2009(1) KLD, 854] it has to be held that an Assistant Sub Inspector of Police is not an Abkari Officer entitled to detect or investigate a crime under the provisions of the Abkari Act. In the decision reported in 2007 (4) KLT 169 this court held that an Assistant Sub Inspector of Police is not empowered to detect and investigate Abkari offences. The court further held that even if he was empowered as per the provisions of S.2(o) of Crl.P.C., he can not exercise the power conferred by an Abkari Officer. In a later case that is in [2007 (1) KLT 1010] Vikraman V. State of Kerala there was an opinion made by another judge of this Court that if the ultimate charge is laid by a competent officer there may not be CRL.A.No.770 OF 2005 3 much defect. Therefore the matter came up for consideration before a Division Bench of this Court. In the decision reported in [2008 (2) KLT 1047] where this court held that a Magistrate cannot take cognizance of the offence under the Act, on the basis of a report filed by Asst.Sub Inspector of police who is not an Abkari Officer as defined under the Act. The court found that, illegality or irregularity of investigation is different from lack of power to initiate the prosecution. Later in the decision reported in Unni V. State of Kerala reported in [2009(1) KLD, 854] a learned Judge of this court held again held that the Assistant Sub Inspector of Police is not competent to do it. As early as in 2001 the Apex Court while considering this question under the N.D.P.S. Act, i.e. the case reported in [2001(1) KLT 86 S.C.] Roy V. State of Kerala held that only persons who are competent under the provisions of the Act are bound to detect and investigate the crime. From the facts of this case it is very clear that everything is done by an Assistant Sub Inspector of Police who is an incompetent person under the provisions of the Act. Necessarily it has to be held no prosecution can be launched on the basis of his report or CRL.A.No.770 OF 2005 4 detection. Therefore the conviction and sentence passed by the Court below is liable to be set aside and I do so. In the result the criminal appeal is allowed and the conviction and sentence passed by the Sessions Judge is set aside and the accused is found not guilty of the offences alleged. He is acquitted and set at liberty forth with. M.N. KRISHNAN, JUDGE. ul/-