IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 CRL.A.No. 355 of 2002(C) ----------------------- SC.93/2000 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR .................... APPELLANT(S): ACCUSED --------------------- ACHUTHAN, S/O.NARAYANAN, AGED 40 YEARS, ORAVANPADATH HOUSE, CHERUTHURTHI VILLAGE P.O., THRISSUR DISTRICT NOW RESIDING AT PANAYAPPILLY HOUSE, PALLOOR POST, KONDAYOOR, DESHAMANGALAM (VIA), THRISSUR DISTRICT. BY ADV. SRI.SHOBY K.FRANCIS RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 355 OF 2002 = = = = = = = = = = = = = = = Dated this the 25th day of August, 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 Court, (Adhoc-II), Thrissur in S.C.93/00. Accused was charge sheeted for offences u/s 55(a) and (i) of the Abkari Act and was convicted u/s 55(a) and (g) of the Act. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are: (1) Whether the case detected and registered by Assistant Sub Inspector of Police is maintainable? (2) Whether the conviction u/s 55(a) and (g) is sustainable? (3) Is there anything to interfere with the decision rendered by the Court below? Points 1 to 3: 3. All the points are answered together for the sake of convenience. Heard the learned counsel for the appellant as Crl. Appeal NO. 355 OF 2002 -:2:- well as the Prosecutor. It is the case of the prosecution that the Assistant Sub Inspector of Police, Cheruthuruthi Police Station on 3.5.99 had detected the crime and seized the liquid and registered the case. It is the case of the prosecution that the accused was found to be in possession of two litres of illicit arrack from the brick field lying on the western side of the Varavathoor Ferry road on 3.5.99. 4. Learned counsel for the appellant would contend before me that since the detection and seizure has been done by the Assistant Sub Inspector of Police it is not maintainable and the accused cannot be convicted on the basis of the same. He had taken me through the various provisions of the Abkari Act like Ss.31, 34, 50 etc. wherein the word used is an Abkari officer. Who is an Abkari officer under the police department had been notified by the Government of Kerala as per the notification No. SRO 321/96. Any Police officer of and above the rank of Sub Inspector of Police are Abkari Officers for the purpose of this Act. Or in other words, any officer inferior to the rank of a Sub Inspector of Police is incompetent to detect, investigate, register and lay charge regarding an abkari Crl. Appeal NO. 355 OF 2002 -:3:- offence. This matter has been dealt with by the High Court Kerala in the following decisions namely 2007 (4) KLT 169] Sabu V. State of Kerala, [2008 (2) KLT 1047] Subash V. State of Kerala, and Unni V. State of Kerala [2009(1) KLD, 854]. 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. This matter came up for consideration before the Division Bench of this Court in decision reported in Subash v. State of Kerala (2008 (2) KLT 1047). In that case it was 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. Illegality or irregularity of investigation is different from lack of power to initiate the prosecution. Another learned Judge of this Court in the decision reported in Unni V. State of Kerala reported in [2009(1) KLD, 854] held that Assistant Sub Inspector of Police, as per the notification issued by the Government, is not authorised nor empowered to detect or investigate an abkari offence. From the materials available in Crl. Appeal NO. 355 OF 2002 -:4:- this case it was only the Assistant Sub Inspector of Police, Cheruthuruthi Police Station along with the head constable detected, searched, seized and laid the foundation for the case. He is incompetent under law to do it. Therefore the prosecution may not lie against the accused. Therefore the inevitable conclusion is that the conviction and sentence passed by the Court below are liable to be set aside and I do so. In the result the Crl.Appeal is allowed as follows: 1) Conviction and sentence passed by the learned Addl. Sessions Judge u/Ss. 55(a) and 55(g) of the Abkari Act are set aside. (2) The accused is found not guilty of the offences and he is acquitted and set at liberty forth with. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 355 OF 2002 -:5:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 355 OF 2002 = = = = = = = = = = = J U D G M E N T 25th August, 2009