IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 793 of 2003()
1. RAJAN S/O. ANDY, AGED 38 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.SUNIL V.MOHAMMED
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :17/07/2009
O R D E R
M.N. KRISHNAN, J.
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Crl. Appeal NO. 793 OF 2003
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Dated this the 17th day of July, 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,
Adhoc-II, Kozhikode in S.C.400/00. The accused was charge
sheeted for the offence u/s 55(a) of the Abkari Act and was
found guilty thereunder and sentenced to undergo rigorous
imprisonment for a period of two years and to pay a fine of
Rs.1,00,000/- and in default to undergo simple imprisonment
for a period of six months. It is against that decision the
appeal is preferred.
2. The points that arise for determination in the
appeal are;
(1) Whether the prosecution as initiated is sustainable?
(2) Whether the accused can be found guilty u/s 55(a)
of the Abkari Act?
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Points:
3. It is the case of the prosecution that on 26/10/98
at about 8 p.m. the accused was found in possession of three
bottles of 180 ml. Golden Star Brandy, one bottle of R.B.
Brandy and one bottle of Queens Brandy meant for sale in
Pondichery without the sticker of the Kerala Beverages
Corporation. Prosecution was launched. It is true that the
detection was done by the Sub Inspector of Police. But quite
strangely the investigation and laying of the charge was done
by the Asst. Sub Inspector of Police. As PW3 in the chief-
examination itself he had deposed that he was the Asst. Sub
Inspector of Police on the relevant date and that as per the
instructions of the Sub Inspector of Police he had conducted
the investigation and laid the charge before the police. Or in
other words the investigation and charge has been laid by
Asst. Sub Inspector of Police. Learned counsel for the
appellant contends before me that the Assistant Sub Inspector
is incompetent under the Abkari Act to do the same and
therefore the prosecution will not lie.
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4. S.50 of the Abkari Act specifically states that the
Magistrate can take cognizance of the offence on a report filed
by an Abkari Officer as defined under the Act. By virtue of the
Governmental Notification in SRO 321/96 who are the Abkari
Officers for the purpose of the Act has been stated by the
Government. So far as it relates to the police department it is
stated that officers of and above the rank of a Sub Inspector
are Abkari Officers. So only from a Sub Inspector of Police
and upwards the power is given as an Abkari Officer.
Unfortunately in the case before me the investigation and
laying of charge has been done by an Asst. Sub Inspector of
Police who is not an Abkari Officer as defined under the Act.
This matter has been considered by this Court in the various
decisions.
5. In the decision reported in Sabu v. State of
Kerala (2007 (4) KLT 169) the learned judge of this Court
held that Assistant Sub Inspector of Police is not an authorized
officer to detect and investigate an offence under the Act. This
Court also held that even if he was empowered as per the
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provisions of S.2(o) of Cr.P.C. he cannot exercise the power
conferred on an Abkari Officer.
6. In the decision reported in Vikraman v. State of
Kerala 2007 (1) KLT 1010 another judge of this Court held:
“When detection was made by Abkari Officer,
mere fact that Assistant Sub Inspector
conducted later part of investigation and laid
charge will not vitiate the trial.”
The facts of the present case is exactly within the four corners
which is considered by the learned Judge. But the correctness
of this decision and the decision earlier referred to was
referred to a Division Bench and the Division Bench of this
Court in the decision reported in Subash v. State of Kerala
(2008 (2) KLT 1047) held:
“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. The Court further
held that illegality or irregularity in
investigation is different from lack of power
to initiate prosecution.”
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7. The Division Bench also considered the correctness
of the decision in Vikraman v. State of Kerala 2007 (1)
KLT 1010 in paragraph 7 of the judgment and the Division
Bench of this Court held as follows.
“We are of the opinion that on the
plain reading of S.50 of the Abkari Act, the
Magistrate has no jurisdiction to take
cognizance of the cases as the report was
filed by a person other than an Abkari
Officer. Hence, Vikraman’s case cannot be
acceptable as an authoritative decision that
despite the mandate in S.50 Magistrate can
take cognizance on a report filed by a
person other than an Abkari Officer.”
8. So in the light of this decision also the present
action will not lie. Later another judge has considered the
point regarding the power of Assistant Sub Inspector in the
decision reported in 2009 (1) KLD 854 Unni v. State of
Kerala in that case this Court held that Assistant Sub
Inspector of Police as per the notification issued by the
Government is not authorised or empowered to detect or
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investigate an Abkari offence. So in the light of these
decisions it clearly emerges that an Assistant Sub Inspector of
Police being not an Abkari Officer authorised under the Abkari
Act is incompetent to detect, investigate or lay charge in
relation to an Abkari offence. Therefore it has to be held that
the action by the Assistant Sub Inspector of Police in the
present case is lacking jurisdiction which cuts at the root of
the prosecution and therefore the prosecution will not lie.
Hence the Crl.Appeal is allowed and it is found that the
accused is not guilty of the offence u/s55(a) of the Abkari Act.
He is acquitted and set at liberty forthwith.
M.N. KRISHNAN, JUDGE.
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M.N. KRISHNAN, J.
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Crl.A. No. 793 OF 2003
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J U D G M E N T
17th July, 2009