IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 Crl.Rev.Pet.No. 1462 of 2001() ------------------------------ CRA.146/1999 of ADDL.SESSIONS COURT, KOZHIKODE CC.733/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, THAMARASSERY .................... REVN. PETITIONER: --------------------- SHAJU, S/O.GANGADHARAN NAIR, PUTHIYITTIL, CHEMBUKKAVU, KODENCHERY. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENTS: --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. --------------------------------------- Crl.R.P.No.1462 of 2001 ---------------------------------------- Dated this the 23rd day of October, 2009 ORDER The revision petitioner is the accused in C.C.No.733 of 1997 of Judicial Magistrate of the First Class-II, Thamarassery and appellant in Criminal Appeal No.136 of 1999 of Sessions Court, Kozhikode. He was convicted under Section 55 (a) of Abkari Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.25,000/-, in default, to undergo simple imprisonment for two months by the trial court. The conviction of the revision petitioner under Section 55 (a) of Abkari Act was confirmed in appeal. But sentence was modified to the effect that he is sentenced to under go simple imprisonment for a period of 3 months. Sentence of fine was maintained. 2. The case of the prosecution as shaped in evidence Crl.R.P.No.1462 of 2001 2 before the trial court was that, on 6/5/1996 at about 5.30 p.m. at Chambakadavu, accused was found in possession of ten bottles of Indian made foreign Liquor containing 375 ml. each and that thereby committed the offence under Section 55 (a) of Abkari Act. 3. When the accused appeared before the trial court, he pleaded not guilty to a charge under Section 55(a) of Abkari Act. PWs.1 to 6 were examined, Exts.P1 to P5 were marked and MO.1series and MO.2 were produced on the side of the prosecution. When questioned under Section 313 of Cr.P.C. the accused denied the entire incident before the trial court. No defence evidence was adduced. 4. PW.1 is an independent witness who witnessed the seizure of contraband article with accused. PW.2 and PW.3 are attestors to the Mahazar, Ext.P2. PW.4 is a Constable who was put along with PW.6, A.S.I. PW.5 is the Sub-Inspector of Police who laid the charge. PW.6 is the Crl.R.P.No.1462 of 2001 3 A.S.I. who detected the offence and investigated the case. The counsel for the revision petitioner mainly argued that PW.6, Detecting Officer and the Investigating Officer is an A.S.I. of Police who is not an authorised Officer under Section 4 of Abkari Act to investigate and detect offence under the Abkari Act and that therefore the charge against the accused will not lie. 5. The main point which arise for consideration is whether PW.6 who has detected the offence and conducted investigation is an authorised officer as empowered under Section 4 of Abkari Act. 6. Under Section 4 of Abkari Act, the Government of Kerala is empowered to authorise an officer of the State to detect or investigate an offence contemplated under the provisions of the Abkari Act. The Government of Kerala had notified that all police officers above the rank of Sub Inspector of Police is empowered to discharge all the duties Crl.R.P.No.1462 of 2001 4 conferred on an Abkari officer as per notification S.R.O.321/96 dated 29/3/1996. Therefore PW.6, the Assistant Sub Inspector of Police cannot be considered as an authorised officer to detect or investigate the offence under the Abkari Act. This position has been highlighted by a Single Bench of this Court in Sabu Vs. State of Kerala (2007(4) KLT 169). In view of the principles laid down in the above decision, charge against the accused will not lie. Therefore I set aside conviction and sentence of the revision petitioner by the trial court which is confirmed and modified by the lower appellate court and acquit the accused finding him not guilty of the charges levelled against him. In the result, this revision petition is allowed. The impugned judgment of the trial Court and the Lower appellate Court are set aside, setting aside the conviction and sentence of the revision petitioner. He is Crl.R.P.No.1462 of 2001 5 acquitted of all the charges levelled against him. His bail bonds are cancelled. P.Q.BARKATH ALI, JUDGE skj.