IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 CRL.A.No. 637 of 2002() ---------------------------------- SC.251/2000 of 3rd ADDL. SESSIONS COURT (ADHOC) FAST TRACK COURT - I, THRISSUR ................................................................... APPELLANT(S): ACCUSED -------------------------------------- CHANDRAN, S/O.GOVINDAN, VATTAMPARAMBIL VEETTIL, CHELOOR DESOM, ELAVALLI VILLAGE, CHAVAKKAD TALUK. BY ADVS. SRI.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR RESPONDENT(S): STATE AND COMPLAINANT ----------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM 2. THE SUB INSPECTOR OF POLICE, PAVARATTY POLICE STATION, THRISSUR DISTRICT BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.637 OF 2002 -------------------------- Dated this the 6th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed by the 3rd Addl.Sessions Judge (Ad hoc) Fast Track Court – I, Thrissur, S.C.No.251/2000. The accused faced the trial u/s.55(a) and (g) of Abkari Act and he was convicted under both section for a period of 1 year each and to pay a fine of Rs.1 lakh. It is against that decision the present appeal is preferred. The points that arise for determination are, 1. Whether the conviction and sentence passed by the court below are sustainable on account of the fact that the crime has been detected by a Head Constable ? 2. Is there anything to interfere with the decision rendered by the court below? 2. Points 1 and 2 :- It is the case of the prosecution that on 18.10.1997 at about 7.10 P.M., the accused was found in possession of 10 ltrs. of arrack and 5 ltrs. wash and equipments CRL.A.No.637 OF 2002 2 to manufacture the arrack in house No.II/630 of Elavally Panchayath and thereby he has committed the offence u/s.55 (a) and (g) of Abkari Act. The trial court on analysis of the materials had convicted him, as mentioned in the previous paragraph. The main point argued before me is that, the prosecution itself will not lie for the reason that the detection of the crime is conducted by a person incompetent to do it. Admittedly, the detection of the crime has been done by a Head Constable of police attached to the Pavaratty police station and the crime has been registered by the Assistant Sub Inspector of police on the basis of the said detection. It is argued before me that, a person who is entitled to detect, seize and investigate should be an Abkari Officer as contemplated under the Act. By virtue of a notification in S.R.O.321/1996, the Govt. of Kerala has notified who all would be the Abkari Officers. So far as the police department is concerned, only officers of and above the rank of a Sub Inspector would be an Abkari Officer. Admittedly, the present person who had detected the offence, is below the rank of a Sub Inspector and CRL.A.No.637 OF 2002 3 therefore he will not come under the purview of an Abkari Officer as contemplated under the Act. Then what would be the legal position, had been decided in the following cases, by this court. I may first refer to the decision reported in [2007 (4) KLT 169] Sabu V. State of Kerala. In that case it was an Asst. Sub Inspector of police who detected and investigated the offence. This court held that, he is not a competent person to do the same and it was held that “PW3 who was only, a Assistant Sub Inspector of police was not empowered to detect and investigate the offence. This court also held that even if he was empowered as per the provisions of S.2(O) of Crl.P.C., he can not exercise the power conferred by an Abkari Officer. A Division Bench of this court, in the decision reported in [2008 (2) KLT 1047] Subash V. State of Kerala, also considered the position and held that a Magistrate can not take cognizance of the offence under the Act, on the basis of a report filed by Asst.Sub Inspector of police who is not an Abkari Officer as defined under the Act. The court found that, illegality or CRL.A.No.637 OF 2002 4 irregularity of investigation is from lack of power to initiate the prosecution. In that case, the court also considered the decision of this court reported in [2007 (1) KLT 1010] Vikraman V. State of Kerala and held that it does not lay the correct law. Recently, in a decision of Unni V. State of Kerala reported in [2009(1) KLD, 854], the learned Judge of this court held that, a Asst. Sub Inspector of police, as per the notification issued by the Government, is not authorised or empowered to detect or investigate the abkari offences. So all these decisions would conclusively establish that an offence detected by an officer, below the rank of a Sub Inspector will vitiate prosecution itself. I may also refer to the decision of the Honourable Apex Court reported in [2001(1) KLT 86 S.C.] Roy V. State of Kerala. The apex court was dealing with the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985. It was held in that, that no officer other than an empowered officer can resort to S.41(2) or exercise powers u/s.42(1) of NDPS Act or make a complaint under Clause D CRL.A.No.637 OF 2002 5 and Sub Section 1 of S.36(a) of NDPS Act. So all these decisions pin-pointedly conclude the position that, unless the person competent under the Act is detecting an offence, a prosecution will not lie. From the materials available in the case before me, it is a Head Constable who had detected the crime. Therefore the prosecution lacks jurisdiction itself and therefore the accused has to be acquitted. 3. Therefore the criminal appeal is allowed and the finding of guilt of the accused u/s.55(a) and (g) is set aside. He is found not guilty of the offences alleged against and the accused is acquitted and set at liberty forth with. Since the accused is found not guilty and acquitted, the amount ordered to be deposited as a condition, precedent to suspend the sentence, has to be paid back to the accused on proper application. Appeal disposed of accordingly. M.N.KRISHNAN, JUDGE ami.