High Court Kerala High Court

Vijayan vs State Of Kerala on 7 July, 2009

Kerala High Court
Vijayan vs State Of Kerala on 7 July, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 1925 of 2003()


1. VIJAYAN, AGED 35 YEARS,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

                For Petitioner  :SRI.SANTHARAM.P

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice P.Q.BARKATH ALI

 Dated :07/07/2009

 O R D E R
                      P.Q. BARKATH ALI, J.
                --------------------------------------
                    CRL. APPEAL 1925 OF 2003
                --------------------------------------
                       Dated: JULY 7, 2009

                           JUDGMENT

This appeal is by the accused in Sessions Case

No.116/2000 on the file of the Additional District and Sessions

Judge (Fast Track Ad Hoc – II), Kozhikode, challenging his

conviction under sec.55(a) of the Abkari Act and sentence to

undergo simple imprisonment for one year and to pay a fine of

Rs.1 lakh and in default to undergo simple imprisonment for a

further period of six months.

2. The case of the prosecution as shaped in evidence before

the lower court was that on April 30, 1999 at about 9.15 a.m.

the accused was found to be in possession of 36 bottles of Indian

Made Foreign Liquor (180 ml. each) behind the house bearing

door No. CP V/482 of Muthukad in Chakkittapara panchayat

without having any permit and thus committed the offences

punishable under sec.55(a) of the Abkari Act, sec. 15 of Abkari

Amendment Ordinance and Rule 9 of Foreign Liquor Rules. The

CRL. APPEAL 1925 OF 2003 2

appellant was arrested on the spot.

3. Judicial Magistrate of First Class, Perambra, took

cognizance of the case as CP No.15/1999 and committed it to

the Sessions Court, Kozhikode. Initially the case was made over

to the Assistant Sessions Court, Quilandy, and thereafter it was

withdrawn and made over to the trial court for trial and disposal.

The appellant/accused on appearance before the lower court

pleaded not guilty to a charge under sec.55(a) of the Abkari Act

and Rule 9 of Foreign Liquor Rules. P.Ws.1 to 4 were examined,

Exts.P1 to P11 were marked and M.Os.1 and 2 were produced on

the side of the prosecution before the lower court. When

questioned by the lower court under sec.313 Cr.P.C., the

appellant/accused denied the entire case of the prosecution. No

evidence was adduced on the side of the accused before the court

below. A photocopy of the identity card of the appellant was

marked as Ext.D1.

4. The trial court on an evaluation of evidence found the

appellant guilty of the offence punishable under sec.55(a) of the

Abkari Act and Rule 9 of Foreign Liquor Rules, convicted him and

sentenced him as aforesaid. The appellant has challenged his

CRL. APPEAL 1925 OF 2003 3

conviction and sentence in this appeal.

5. Sri P. Santharam, learned counsel fore the appellant,

argued that the investigation was conducted and the charge in

this case was laid by PW.4, the then Assistant Sub Inspector of

Police, that the Assistant Sub Inspector has no sanction to detect

or investigate the crime under the Abkari Act, that he is not an

abkari officer as contemplated under sec.50 of the Abkari Act and

that therefore the appellant/accused has to be acquitted on that

ground itself. There is force in the above argument of the learned

counsel for the appellant.

6. A Division Bench of this Court in Subhash v. State of

Kerala (2008(2) KLT 1047) has held that Assistant Sub Inspector

of Police is not an Abkari officer as contemplated under Section 2

(3) and Section 50 of the Abkari Act and that he is not competent

to conduct investigation and laying the charge. The same

principle has been upheld by this Court in Unni v. State of Kerala

(2009(2) KHC 661). In the light of the principles laid down in

the above decisions, I am of the view that the entire proceedings

from taking cognizance, trial and sentence etc. are illegal and

that the accused has to be discharged. I am not entering into the

CRL. APPEAL 1925 OF 2003 4

merits of the case as the appellant/accused has to be discharged

on the above ground.

In the result, the appeal is allowed. The conviction and

sentence imposed by the lower court against the accused are set

aside and the appellant is discharged for lack of jurisdiction in

taking cognizance of the case by the Magistrate in the absence of

a report filed by the Abkari officer as defined under Section 5(2)

of the Act who is specially empowered under Section 50 of the

Abkari Act. Fine, if any, remitted by the appellant shall be

refunded to him. His bail bonds are cancelled.

P.Q. BARKATH ALI, JUDGE

mt/-