IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 CRL.A.No. 1798 of 2003() ----------------------------------- SC.86/2003 of ADDL. SESSIONS COURT (ADHOC), KALPETTA .................... APPELLANT(S): 1ST ACCUSED ------------------------- VISWANATHAN S/O. MUNDAN, PONNOTH VEEDU, EDATHARA, NOOLPUZHA AMSOM, S. BATHERI. BY ADV. MR.P.CHANDRASEKHAR RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1798 OF 2003 ------------------------------ Dated this the 30th day of June, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge (Adhoc), Kapetta in S.C.No.86/2003. Three accused were charge sheeted for the offence under Section 55(a) of the Abkari Act and after the trial, the court found the first accused guilty and others not guilty and convicted and sentenced the first accused to undergo R.I for one year and to pay a fine of Rs.One lakh and in default, to undergo further imprisonment for three months. It is against that decision, the appeal is preferred. The points that arise for determination in the appeal are (1) whether the prosecution is legally sustainable (2) Is the conviction and sentence passed by the court below sustainable in law. 2. Points 1 and 2: It is the case of the prosecution that on 22.7.2001 at about 4 a.m, PWs1 and 5 noticed accused 1 and 2 and one Rajan engaged in the distillation of illicit arrack inside Wayanad Wild Life in 1948 Teak plantation. The first accused was apprehended and the illicit arrack was seized with wash 2 CRL.A.NO.1798/03 and they were able to find 9 liters of illicit arrack. The trial court, on analysis of the evidence, found the first accused guilty and convicted him there under. Now, the main point that has been argued before me is regarding the sustainment of the prosecution. It is in the light of the fact that the detection has been done by a Forest Officer and the investigation in part was done by the Deputy Range Officer of the Forest Department. 3. The learned counsel would argue that the power under the provisions of the Abkari Act to conduct search and to investigate lies on the Abkari Officer as defined by the Act. The Government of Kerala, by SRO No.321/1996 dated 29.3.1996 had conferred the power on certain officers as Abkari officers for the purpose of the Act. They are, all officers from the Excise Department, all police officers of and above the rank of Sub Inspector of Police, all Revenue Officers of and above the rank of Deputy Collectors in Revenue Department. So, no forest officer comes under the purview of an Abkari officer under the provisions of the Abkari Act by the said notification. Then, what will be the legal impact of such 3 CRL.A.NO.1798/03 detection and seizure had been considered by a Single Judge of this Court in the decision reported in Sabu v. State of Kerala (2007 (4) KLT 169) and later by a Division Bench of this Court in Subash v. State of Kerala (2008 (2) KLT 1047). In Sabu's case, this Court had considered the question whether the Assistant Sub Inspector of Police is competent to conduct the search and to investigate an offence under the Act. This Court held that since he does not come under the purview of the Abkari Officer as contemplated under the Governmental order mentioned above, is not competent and the court also held that even if he was empowered as per the proviso to Section 2 (o) of the Cr.P.C, he cannot exercise the power conferred on an Abkari officer. Since there was some conflict of views between the said decision and the decision reported in Vikraman v. State of Kerala (2007 (1) KLT 1010), the matter came up before the Division Bench for consideration. The Division Bench 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 in investigation 4 CRL.A.NO.1798/03 is different from lack of power to initiate prosecution. The Division Bench did not agree with the view of the decision reported in Vikraman’s case. The mere fact that the Assistant Sub Inspector conducted the later part of the investigation and laid the charge will not vitiate the trial, is the view taken in the said decision. The Division Bench held that on the plain reading of Section 50 of the Abkari Act, the Magistrate has no jurisdiction to take cognizance of the case as the report was filed by a person other than the Abkari Officer. So, it was held that the Vikraman's case cannot be accepted as an authoritative decision. Despite the mandate in Section 50, the Magistrate cannot take cognizance of the report filed by a person other than Abkari officer. The same view has been taken by another Hon'ble Judge of this Court in the decision reported in Unni v. State of Kerala (2009 (1) KLD 854). It was a case where an Assistant Sub Inspector detected the crime and this Court held that it is not proper. So, from the materials available in this case, it can be seen that the detection, seizure and part of the investigation is done by the forest officials, who are incompetent to act as abkari officers under the provisions 5 CRL.A.NO.1798/03 of the Act. So, it cuts at the root of the prosecution and competency of the person, who is not an Abkari Officer. So, the inevitable conclusion is that the prosecution will not lie. Therefore, the conviction and sentence passed by the court below suffers from serious infirmity and therefore, it has to be set aside and I do so. In the result, the appeal is allowed. The conviction and sentence passed under Section 55(a) of the Abkari Act against the appellant is set aside. He is found not guilty of the offences alleged and is acquitted and set at liberty forthwith. M.N. KRISHNAN, JUDGE cl 6 CRL.A.NO.1798/03