Mathew Franco and Margaret Franco v. State of Kerala and The Assistant Sub Inspector of Police, Sakthikulangara Police Station, Kollam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 11TH DAY OF JULY 2017/20TH ASHADHA, 1939 Crl.MC.No. 4732 of 2013 () ----------------------CRIME NO. 45/1999 OF SAKTHIKULANGARA POLICE STATION, KOLLAM PETITIONER(S)/ACCUSED NOS.3 & 4: ------------------------------- ## 1. MATHEW FRANCO - S/O.LAZAR FRANCO, MARIYALAYAM HOUSE, SAKTHIKULANGARA, KOLLAM DISTRICT. 2. MARGARET FRANCO - W/O..LAZAR FRANCO, MARIYALAYAM HOUSE, SAKTHIKULANGARA, KOLLAM DISTRICT. BY ADVS.DR.K.P.SATHEESAN (SR.) SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.ANOOP.V.NAIR SRI.S.VIBHEESHANAN RESPONDENT(S)/RESPONDENTS: -------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM,KOCHI 682 031. 2. THE ASSISTANT SUB INSPECTOR OF POLICE SAKTRHIKULANGARA POLICE STATION, KOLLAM 691 581. BY PUBLIC PROSECUTOR SRI.C.N. PRABHAKARAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11-07-2017, ALONG WITH CRMC. 4731/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 4732 of 2013 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- ANNEXURE 1 COPY OF THE FIR REGISTERED BY THE 2ND RESPONDENT AS CRIME NO.45/1999 DATED 17/2/1999 ANNEXURE II COPY OF THE CHARGE SHEET IN SC NO.464/2007 PENDING BEFORE THE ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC) I, KOLLAM. ANNEXURE III COPY OF THE JUDGMENT DATED 30/7/2009 IN CRL.APPEAL NO.770/2005 ANNEXURE IV COPY OF THE ORDER DATED 5/7/2011 IN CRL.MC NO.1679/2011 RESPONDENT(S)' EXHIBITS ----------------------- /TRUE COPY/ P.S. TO JUDGE ## **B. SUDHEENDRA KUMAR, J.** ------------------------------------------------- **Crl.M.C. No. 4732 of 2013** ------------------------------------------------- Dated this the 11[th] day of July, 2017 ## **ORDER** The petitioners are accused Nos. 4 and 5 in Crime No. 45 of 1999 of Sakthikulangara Police Station registered for the offence under Section 55 (a) of the Abkari Act. The above case is presently pending as S.C. No. 464 of 2007 on the files of the court below. ## 2. The prosecution allegation can be briefly stated thus:- The petitioners are the joint licensees of toddy shop No. 3 of Kollam Excise Range. When the 2[nd] respondent searched the above said toddy shop on 17-12-1999 at 6 p.m., 46 packets of illicit arrack were found in the said shop. The accused persons , who were present in the toddy shop, were arrested -2- ## **Crl.M.C. No. 4732 of 2013** from the spot by the first respondent. The contraband articles were also seized by him as per a mahazar. After completing the investigation, the final report was filed before the Court by the Detective Inspector of Police, Crime Branch CID, Narcotic and Economic Offences Cell, Thiruvananthapuram. 3. This Crl.M.C. has been filed praying for quashing the final report and further proceedings against the petitioners in the above said case. ## 4. Heard. 5. The learned counsel for the petitioners has argued that since the detection, seizure and the sampling in this case were done by the Assistant Sub Inspector of Police, who was not an Abkari Officer competent to do the said acts, the FIR, final -3- ## **Crl.M.C. No. 4732 of 2013** report and further proceedings against the petitioners cannot be sustained. 6. As per SRO 321/1996, only the officers of and above the level of Sub Inspector of Police are officers competent to exercise the powers of Abkari Officers. In a similar situation, the Court in Subramanian v. State of Kerala [2010 (2) KHC 552] held that the Assistant Excise Inspector was not a competent and authorised officer under the Abkari Act, especially under Sections 4 (d) and 70 of the Abkari Act as per SRO No. 234 of 1967 and hence, the seizure and arrest made by the Assistant Excise Inspector were without authorisation and jurisdiction. 7. The court in Sasidharan v. State of Kerala [2012 (2) KLT 392] quoted the decision in Subrahmanian (supra) with approval and held that -4- ## **Crl.M.C. No. 4732 of 2013** the Assistant Excise Inspectors were not empowered under the Abkari Act prior to 8-5-2009 to perform the duties under Sections 31, 32, 34, 35 and 38 to 53 of the Abkari Act. 8. The Division Bench in Subash v. State of Kerala [2008 (2) KLT 1047] held that a Magistrate cannot take cognizance of an offence under the Abkari Act on the basis of the report filed by the Assistant Sub Inspector of Police, who is not an Abkari Officer as defined under the Act. 9. This Court in Unni v. State of Kerala [2009 (2) KHC 661] held that the Assistant Sub Inspector of Police is not authorised nor empowered to detect or investigate the abkari offences, as per the notification issued by the Government. 10. The learned Public Prosecutor has -5- ## **Crl.M.C. No. 4732 of 2013** submitted that even now the Assistant Sub Inspector is not an Abkari Officer. 11. In this case, it is clear from Annexure -1 that the 2[nd] respondent, the Assistant Sub Inspector of Police detected the above offence, seized the contraband, arrested some of the accused and took the samples. Since the 2[nd] respondent was only an Assistant Sub Inspector of Police, who was not an authorised officer under the Abkari Act, the seizure of contraband, sampling and the registration of crime by the 2[nd] respondent were without jurisdiction and authorisation, as he was not an authorised officer under the Abkari Act. In the said circumstances, no successful prosecution against the petitioners can be sustained. Consequently, no purpose will be served even if the prosecution against the petitioners is permitted to be continued. For the said reason, I am inclined to quash -6- ## **Crl.M.C. No. 4732 of 2013** Annexure-II final report and further proceedings against the petitioners in S.C. No. 464 of 2007 on the files of the court below, in exercise of the inherent power under Section 482 Cr.P.C., to meet the ends of justice. Accordingly, I order so. In the result, this Crl. M.C. stands allowed. ## **B. SUDHEENDRA KUMAR, JUDGE** . ani/