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
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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
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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
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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
