Iqbal B v. State of Kerala and The Sub Inspector of Police

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 21ST DAY OF FEBRUARY 2018 / 2ND PHALGUNA, 1939** **Crl.MC.No. 5697 of 2014** **AGAINST THE ORDER/JUDGMENT IN CP 9/2014 of D.C. & SESSIONS COURT, ERNAKULAM CRIME NO. 1585/2013 OF THOPPUMPADY POLICE STATION , ERNAKULAM** ## **PETITIONER(S)/ACCUSED:** ## **IQBAL B** **SON OF BEERAN, CC 14/1290M AZHANIKKAL HOUSE, NEAR WATER AUTHORITY OFFICE, NORTH MOOLAMKUZHY, NAZARATHU, KOCHI.** **BY ADVS.SRI.K.RAMAKUMAR (SR.)** **SRI.G.RENJITH** **SMT.AMMU CHARLES** **SRI.S.M.PRASANTH** ## **RESPONDENT(S)/STATE & COMPLAINANT:** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** **2. THE SUB INSPECTOR OF POLICE** - **THOPPUMPADY POLICE STATION, ERNAKULAM, KOCHI - 5.** **R1-R2 BY PUBLIC PROSECUTOR:SRI C K SURESH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.11.2018, THE COURT ON 21.02.2018 PASSED THE FOLLOWING:** **Crl.MC.No. 5697 of 2014 ()** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **A- COPY OF FINAL REPORT IN CRIME NO. 1585 OF 2013 ON THE FLE OF THE COURT OF JFCM-II, KOCHI.** ## **RESPONDENTS EXHIBITS:NIL** **True Copy / P A to Judge** ## **SUNIL THOMAS, J.** ## ================= ## **Crl.M.C.No.5697 of 2014** ================= Dated this the 21[st] day of February, 2018 ## **ORDER** Accused in Crime No.1585 of 2013 of Thoppumpady Police Station for offences punishable under sections 55(a)(i) and 55(c) and 58 of the Abkari Act is the petitioner herein. 2. It was alleged by the prosecution that, on 01.11.2013, it was found that, accused had stored 91.5 liters of IMFL in 115 bottles. It was found kept in his house and also in a car stationed in his garage. Equipments for bottling and labeling were also seized. It was detected by the Sub Inspector, Thoppumpady Police Station who recovered the items, seized it, samples taken and crime registered. Accused was also arrested. Investigation was proceeded by him and samples taken were forwarded for chemical analysis. After investigation, final report was laid by his successor Sub Inspector of Thoppumpady Police Station on 31.03.2014. 3. Petitioner herein has approached this Court contending that the Sub Inspector of Police is not an authorized officer under SRO 320/96 and it does not empower him with the powers under sections 55 and 58 of the Abkari Act. Learned senior counsel for the petitioner relied on the decision reported in **Hashim T K v. Assistant Sub Inspector, Chandera Police Station and** Crl.M.C.5697/14 2 ## **Another (2014(1) KHC 283)** to supplement the contention. 4. The question of law that was formulated by the learned counsel was that the police officers are not competent to submit final report under the Kerala Abkari Act. Section 50(ii) of the Abkari Act provides that as soon as the investigation into the offences under this Act is completed, the Abkari Officer shall forward it to a Magistrate, empowered to take cognizance of the offence on a police report, which is a report in accordance with sub section (2) of Section 173 of the Code of Criminal Procedure. It was contended that, this provision contemplates a final report under section 173(2) of the Cr.P.C. It was argued that, section 34 of the Act provides that, any Abkari officer may arrest without warrant in any public thoroughfare or open place, other than a dwelling house, any person found committing offences punishable under the Act. Section 41A provides that notwithstanding anything contained in the Code of Criminal Procedure, every offence punishable under this Act shall be cognizable. It indicates that an abkari officer is competent to investigate and submit final report. Section 34 indicates that, abkari officer means police officers notified as an abkari officer by the Government, under section 4 of the Act. It was argued that, there is indication under the various provisions that Crl.M.C.5697/14 3 police officer appointed as an abkari officer by the Government under section 4 of the Act can make arrest, effect seizure and various other acts and submit final report. However, the contention of the learned senior counsel was that, despite all such powers, police officer cannot initiate proceedings because the prosecution cannot be initiated otherwise than by way of a complaint under the Abkari Act. It was contended by the learned senior counsel further that the abkari officer as defined under section 3(2) of the Act, means, a person lawfully appointed or invested with power under sections 4 or 5. It was stated that sections 4 and 5 empowers the Government to notify in the Gazette to appoint various officers and to invest them with specific powers. Section 5 authorizes the Government to make rules prescribing the powers and duties under this Act to be exercised and performed by the Abkari officer of the several classes. Relying on this provision, it was contended by the learned senior counsel that, it only qualifies the powers and does not invest with the powers, unless defined. It was also contended that, section 4(f) raises the question whether it constitutes an officer of the Government. 5. It is true that section 3(2) provides that an abkari officer means 'any officer mentioned therein or any other person lawfully Crl.M.C.5697/14 4 appointed or invested with the powers under sections 4 or 5. Section 4(e) provides for appointment of subordinate officers of such classes and such designations, powers and duties under the Act as the Government may think fit. According to the counsel, unless the powers are specifically invested by notification, they cannot be presumed to enjoy all the powers including that of filing of final report. It was contended that, hence the Court could not have taken cognizance on the basis of the report filed by the sub inspector of police. 6. It is clear that the definition of abkari officer includes any person lawfully “appointed or invested”. It is in the alternative, which provides for appointments of certain persons as an abkari officer or invest certain officers with specific powers under sections 4 or 5. Hence, it does not mean that a person appointed should also specifically conferred with specific powers by notification. 7. The decision relied on by the learned senior counsel in Hashim's case stands on a totally different factual scenario. In that case, the search and seizure was conducted by an ASI on prior information. He conducted a part of the investigation also. Thereafter, final report was filed by an abkari officer. However, abkari officer was not examined in court. The High Court held that Crl.M.C.5697/14 5 though the evidence collected by the ASI may be looked into, but, unless the person who filed a final report which confer the jurisdiction to a competent magistrate to take cognizance step into the witness box, without any justifiable ground, evidence of other witnesses collected by the ASI has no legal value. That factual situation is not applicable in the present case. 8. Learned Public prosecutor contended that the question regarding taking cognizance on the basis of a report filed by the SI of police does not arise in the light of the decision of the Division Bench reported in **In re v. State of Kerala (2002(1) KLT 10)** . In that, Division Bench specifically took note of the original provision under section 50 of the Act that existed prior to the amendment by Act 16 of 1997 with effect from 03.06.1997. It was noted that section 50 stood amended and section 50A introduced. The Court took note of the fact under section 50A of the Act, it dealt with the procedure to be adopted on receipt of a report. It was held that, upon a report of the final report from the abkari officer, magistrate shall enquire into such offence and commit the court of sessions, if the offence is exclusively triable by the Court of sessions “as if a case is instituted upon a police report as provided in Code of Criminal Procedure, 1973”. The Court, noting the difference held Crl.M.C.5697/14 6 that “the provision in section 50(2) r/w 50A of the Act, in our view, leaves no room for doubt that the case has to be considered as one instituted on a police report as contemplated by section 190(1)(b) of the Code”. It is therefore clear that the intention behind the amendment was to exclude the application of section 202 of the Code and to dispense with an enquiry under section 202(2) of the Code of Criminal Procedure. This intention is manifest from the change regarding the manner in which a report made by the abkari officer has to be treated. Whereas under section 50 of the Act, as it stood before the amendment, it had to be inquired into in like manner as if a complaint had been made before the concerned magistrate. After the amendment, it has to be proceeded with in like manner as if a case is instituted upon a police report. If we give effect to the intention of the Legislature in making the amendment and consider the mischief sought to be averted, it is clear that the earlier decisions insisting that there should an enquiry under section 202 of the Code, could not be applied, subsequent to the amendment brought about to the Abkari Act, by Act 16 of 1997 and the amendment of Section 50 and the introduction of section 50A. 9. Having considered the above legal proposition, especially in the light of the decision of the Division Bench, the Crl.M.C.5697/14 7 contention of the learned senior counsel for the petitioner cannot be sustained. I find no reason to quash the entire proceedings at this stage. Crl.M.C is dismissed reserving the right of the petitioner herein to raise all issues at the time of hearing. Sd/- **SUNIL THOMAS Judge** Sbna/ True Copy / P A to Judge