IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 CRL.A.No. 718 of 2003(B) --------------------------------- SC.309/1999 of ADDL. DISTRICT & SESSIONS COURT (ADHOC I), KOZHIKODE ............................................ APPELLANT(S): ACCUSED NO.2 ---------------------------------------------- UNNI S/O. DEVADAS, 34 YEARS, VATAKKE PAIKATTU MEETHAL HOUSE. BY ADV. SRI.MOHANAN V.T.K. RESPONDENT(S): COMPLAINANT ------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 718 OF 2003 = = = = = = = = = = = = = = = Dated this the 3rd 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-I, Kozhikode in S.C.309/99. The 2nd accused is the appellant before me and along with the first accused he had been found guilty u/s 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of 2½ years and to pay a fine of Rs.1,00,000/- and in default to undergo further imprisonment for a period of nine months. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are: (1)Whether a prosecution will lie in the light of the fact that the case has been detected and investigated by the Assistant Sub Inspector of Police? (2) Whether the accused can be found guilty u/s 55(a) of the Abkari Act? Crl. Appeal NO. 718 OF 2003 -:2:- Points 1 and 2: 3. Heard the learned counsel for the appellant as well as the Prosecutor. The learned counsel for the appellant very strongly contends before me that the Assistant Sub Inspector of Police is not competent to detect, investigate and seize under the provisions of the Abkari Act. This point was considered by the learned Sessions Judge in paragraph 6 of the judgment and he stated that since he is a Station House Officer and he can do so and therefore prosecution is maintainable. Under the notification SRO 321/96, the Government have notified the officers competent to proceed with the Abkari Offences. So far as the police department is concerned only officers of and above the rank of a Sub Inspector of Police is entitled to do the same. Or in other words, an Abkari Officer as contemplated under the provisions of the Abkari Act from the police department will be only officers of and above the rank of a Sub Inspector of Police. Whether S.2(o) Cr.P.C. will confer power on them was another question that has been raised. Both these points are answered by a learned judge of this Court in 2007 (4) KLT 169 (Sabu V. State of Kerala), wherein it was held that Assistant Sub Crl. Appeal NO. 718 OF 2003 -:3:- Inspector of Police is not an authorized officer to detect and investigate an offence under the Abkari Act. It is further stated that even if he was empowered as per the provisions of S.2(o) of Cr.P.C. he cannot exercise the power conferred on an Abkari officer. Later this point had been considered by a Division Bench of this Court reported in [2008 (2) KLT 1047] Subash V. State of Kerala. In that decision also the Division Bench very clearly held that a Magistrate cannot take cognizance of an offence under the Act on the basis of a report filed by the Assistant Sub Inspector of Police who is not an Abkari Officer as envisaged under the Act. The Court held that illegality or irregularity in investigation is different from lack of power to initiate prosecution. Again the question was considered by another learned judge of this Court in the decision reported in Unni V. State of Kerala [2009(1) KLD, 854]. There also the learned judge held that the Assistant Sub Inspector of Police as per the notification issued by the Government is not authorized nor empowered to detect or investigate an Abkari offence. Therefore the statutory requirement is that he must be a Sub Inspector of Police to be an Abkari Officer. Since it is absent he cannot investigate, Crl. Appeal NO. 718 OF 2003 -:4:- detect or seize and therefore a prosecution will not lie. Since the prosecution will not lie the further question of considering whether the accused has committed an offence u/s 55(a) will not arise and the accused is entitled to an acquittal. Therefore the appeal is allowed and the conviction and sentence passed by the court below under S.55(a) of the Abkari Act is set aside. The accused is found not guilty and he is acquitted and set at liberty. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 718 OF 2003 -:5:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 718 OF 2003 = = = = = = = = = = = J U D G M E N T 3rd August, 2009