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Achuthan vs State Of Kerala on 25 August, 2009

Kerala High Court
Achuthan vs State Of Kerala on 25 August, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 355 of 2002()


1. ACHUTHAN, S/O.NARAYANAN,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

                For Petitioner  :SRI.SHOBY K.FRANCIS

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :25/08/2009

 O R D E R
                       M.N. KRISHNAN, J.
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                 Crl. Appeal NO. 355 OF 2002
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         Dated this the 25th 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-II), Thrissur in S.C.93/00. Accused was charge

sheeted for offences u/s 55(a) and (i) of the Abkari Act and

was convicted u/s 55(a) and (g) of the Act. It is against that

decision the accused has come up in appeal.

2. The points that arise for determination are:

(1) Whether the case detected and registered by

Assistant Sub Inspector of Police is maintainable?

(2) Whether the conviction u/s 55(a) and (g) is

sustainable?

(3) Is there anything to interfere with the decision

rendered by the Court below?

Points 1 to 3:

3. All the points are answered together for the sake of

convenience. Heard the learned counsel for the appellant as

Crl. Appeal NO. 355 OF 2002
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well as the Prosecutor. It is the case of the prosecution that

the Assistant Sub Inspector of Police, Cheruthuruthi Police

Station on 3.5.99 had detected the crime and seized the liquid

and registered the case. It is the case of the prosecution that

the accused was found to be in possession of two litres of illicit

arrack from the brick field lying on the western side of the

Varavathoor Ferry road on 3.5.99.

4. Learned counsel for the appellant would contend

before me that since the detection and seizure has been done

by the Assistant Sub Inspector of Police it is not maintainable

and the accused cannot be convicted on the basis of the same.

He had taken me through the various provisions of the Abkari

Act like Ss.31, 34, 50 etc. wherein the word used is an Abkari

officer. Who is an Abkari officer under the police department

had been notified by the Government of Kerala as per the

notification No. SRO 321/96. Any Police officer of and above

the rank of Sub Inspector of Police are Abkari Officers for the

purpose of this Act. Or in other words, any officer inferior to

the rank of a Sub Inspector of Police is incompetent to detect,

investigate, register and lay charge regarding an abkari

Crl. Appeal NO. 355 OF 2002
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offence. This matter has been dealt with by the High Court

Kerala in the following decisions namely 2007 (4) KLT 169]

Sabu V. State of Kerala, [2008 (2) KLT 1047] Subash V.

State of Kerala, and Unni V. State of Kerala [2009(1)

KLD, 854]. In the decision reported in 2007 (4) KLT 169

this court held that an Assistant Sub Inspector of Police is not

empowered to detect and investigate Abkari offences. This

matter came up for consideration before the Division Bench of

this Court in decision reported in Subash v. State of Kerala

(2008 (2) KLT 1047). In that case it was 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 of investigation is different from lack of

power to initiate the prosecution. Another learned Judge of

this Court in the decision reported in Unni V. State of Kerala

reported in [2009(1) KLD, 854] held that Assistant Sub

Inspector of Police, as per the notification issued by the

Government, is not authorised nor empowered to detect or

investigate an abkari offence. From the materials available in

Crl. Appeal NO. 355 OF 2002
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this case it was only the Assistant Sub Inspector of Police,

Cheruthuruthi Police Station along with the head constable

detected, searched, seized and laid the foundation for the

case. He is incompetent under law to do it. Therefore the

prosecution may not lie against the accused. Therefore the

inevitable conclusion is that the conviction and sentence

passed by the Court below are liable to be set aside and I do

so.

In the result the Crl.Appeal is allowed as follows:

1) Conviction and sentence passed by the learned Addl.

Sessions Judge u/Ss. 55(a) and 55(g) of the Abkari Act are set

aside.

(2) The accused is found not guilty of the offences and

he is acquitted and set at liberty forth with.

M.N. KRISHNAN, JUDGE.

ul/-

Crl. Appeal NO. 355 OF 2002
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M.N. KRISHNAN, J.

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Crl.A. No. 355 OF 2002
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J U D G M E N T

25th August, 2009

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