IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 Crl.MC.No. 1040 of 2004(D) -------------------------- CRIME NO. 9/2003 OF MOOZHIYAR POLICE STTION PETITIONER: ACCUSED. -------------------- 1. RAVEENDRAN, S/O.SREEDHARAN, VALIYATHARAYIL, KUMARAPEROOR, VADAKKEKKARA MURI, KOTTAMANPARA, CHITTAR, SEETHATHODU. 2. REJI KUMAR @ KUTTAYI, S/O.KRISHNAN VALIYATHARAYIL, KUMARAMPEROOR, VADAKKEKKARA MURI, KOTTAMANPARA, CHITTAR, SEETHATHODU. 3. SASI, S/O.VASU, THATTUKATTU VEEDU, KUMARANPEROOR, VADAKKEKKARA MURI, KOTTAMANPARA. 4. MANOJ @ PONNACHAN,VAZHAYIL, KUMARAMPEROOR VADAKKEKKARA MURI, KOTTAMANPARA, CHITTAR, SEETHATHODU. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: STATE. ------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON 11-7-2008 PASSED THE FOLLOWING: ORDER ON CRL.M.A. NO. 4120/2004 IN CRL.M.C. NO. 912 OF 2004 DISMISSED. 11-7-2008 Sd/-M.C. HARI RANI, JUDGE TRUE COPY P.S. TO JUDGE M.C. HARI RANI, J. ================== CRL.M.C.NO. 1040 OF 2004 ================== Dated this the 11th day of July 2008 ORDER Petitioners 1 to 4 are being prosecuted for an offence punishable under Section 8(1) and (2) of the Kerala Abkari Act in Crime No.9/2003 of Moozhiyar police station. The case against the petitioners is that on 28-3-2003, they were found distilling arrack in Adiyankala Forest at Kottaman Para by the Head Constable, S.H.O. Moozhiyar police station and on seeing the police party, all the accused persons ran away and escaped. On search of the forest, 21 barrels of wash aggregating to 3250 litres and utensils for distillation of arrack and 700 Ml.of arrack were recovered by the police. Thereafter, the crime was registered against petitioners 1 to 4. Copy of the F.I.R.is produced as Annexure-I. 2. The prayer in this petition is to quash Annexure-I and all further proceedings in Crime No.9/2003 of Moozhiyar police station against petitioners 1 to 4. CRMC.1040/2004 -2- 3. Heard the learned counsel appearing for the petitioners and the learned Public Prosecutor. 4. It is submitted by the learned counsel appearing for the petitioners that the informant in the F.I.R,Annexure-I is not competent to exercise any of the powers under Sections 31 , 32, 33 and 34 of the Kerala Abkari Act as per G.O.(P) No.69/96 TD.dated 29- 3-1996, a copy of which is produced as Annexure-2. Further, the Head Constable, who conducted the search and seizure, is also incompetent for conducting investigation of the above crime. Copy of the seizure mahazar is produced as Annexure-3. Copy of the requisition letter filed by the Head Constable before the Judicial First Class Magistrate Court, Ranni on 28-3-2003 is produced as Annexure-4. Thus, according to the counsel for the petitioners, major part of the investigation of the crime has been conducted by the Head Constable, an incompetent officer and has illegally destroyed the contraband articles which vitiates the trial. Hence, the trial of the case cannot result in conviction and prayed to quash the proceedings against petitioners 1 to 4 under Section 482 of the Code of Criminal Procedure. It is submitted by the learned Public Prosecutor that there is no illegality in the present case and that investigation of the present crime is in the initial stage and that the Head Constable, who has detected CRMC.1040/2004 -3- the offence, was the Station House Officer of Moozhiyar police station as revealed from the F.I.R., Annexure-I and this petition is liable to be dismissed. 5. Under Section 31 of the Abkari Act, the Abkari Officer or an officer in charge of the police station are empowered to conduct the search of houses etc. without warrant, provided he has reason to believe that an offence under the Abkari Act has been committed by any person in any place. The word Abkari Officer as mentioned in Section 31 of the Abkari Act is the same as the officer in charge of the police station appeared in Section 2(o) of the Code of Criminal Procedure. It is revealed from Annexure-1 that the Head Constable, who was the S.H.O.of Moozhiyar police station was conducting investigation along with other police constables in Crime No.1/2003 on 28-3-2003 at 1.20 p.m. and when reached at Kottamanpara they got information regarding distillation of arrack and on search of Adiyankala forest recovered 3250 litres of wash and 700 Ml.of arrack and other utensils for distillation of arrack from the spot at Kottamanpara in Adiyankala forest. On seeing the police party the persons present there ran away and escaped. On enquiry it was realised that petitioners 1 to 4 were the persons, who escaped from the scene of occurrence and the F.I.R.is lodged before the Judicial First Class CRMC.1040/2004 -4- Magistrate Court, Ranni as per Annexure-1. The F.I.R. is an information which sets criminal law in motion thereby requiring the investigating agency to take steps towards investigation regarding commission of a cognizable offence. 6. The learned counsel appearing for the petitioners has relied on a decision of this court in Subhash v. State of Kerala, 2008(2) K.H.C.703(DB) to support his contention raised on behalf of the petitioners herein. On a perusal of the facts of the above decision, I find that the facts in the said decision are entirely different from the present case on hand. In that case final report has been filed by Assistant Sub Inspector of Police, who is not an Abkari officer and this Court held that the Magistrate has no jurisdiction to take cognizance of the case as the report is filed by a person other than an Abkari officer. 7. In the present case it is revealed from Annexure-1 that only the crime has been registered against petitioners for an offence under Sections 8(1) and (2) of the Abkari Act. The investigation is in preliminary stage. So far no report has been filed before the concerned Magistrate’s court. Since there was a stay from this Court, further action pursuant to Annexure-1 was not taken by the authorized officer. I have already found that the decision cited by the learned CRMC.1040/2004 -5- counsel for the petitioners has no application to the facts of this case. In these circumstances, I find that there is no illegality in registering the F.I.R.by the Head Constable, S.H.O.who is authorized to conduct search and register the crime in view of Section 31 of the Kerala Abkari Act. Hence, there is no merit in this petition and it is liable to be dismissed. In the result, the Crl.M.C.is dismissed. M.C. HARI RANI JUDGE ks.