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.
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CRL. APPEAL 1925 OF 2003
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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withdrawn and made over to the trial court for trial and disposal.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/-