IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
FRIDAY, THE 9TH DAY OF NOVEMBER 2012/18TH KARTHIKA 1934
CRL.A.No. 805 of 2005
---------------------[AGAINST THE JUDGMENT DTD.26.4.2005 IN SC.476/1999 of ADDL. DISTRICT AND SESSIONS COURT (ADHOC)-I, KOLLAM]
APPELLANT(S)/ACCUSED: --------------------RAJU, S/O.THOMAS, CHETTUKADAVU PUTHEN VEEDU WEST OF NANTHIRICKAL CHURCH, CHERUMOODU MURI PERINAD VILLAGE.
BY ADV. SRI.P.B.SURESH KUMAR
RESPONDENT(S)/COMPLAINANT: --------------------------
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-11-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **V.K.MOHANAN, J.**
## **----------------------------------------**
## **Crl.A.No. 805 of 2005**
**----------------------------------------**
Dated this the 9[th] day of November, 2012
## **J U D G M E N T**
Challenging the judgment dated 26.4.2005 in SC.No.476 of 1999 of the court of Additional District and Sessions Judge (ADHOC) Court-I, Kollam, the sole accused therein preferred this appeal as he is aggrieved by the conviction and sentence imposed on him for the offence punishable under Section 55(a) of the Abkari Act.
2. The prosecution case is that on 21.9.1997 at about 4 p.m., the accused was found keeping in possession of 3 litres of arrack in a black can of 5 litre capacity for the purpose of sale, at the lintel on the northern side of his house by name 'Chettukadavu puthen veedu' in Cherumood cherry of Perinadu Village. Thus, according to the prosecution, the accused has committed the offence punishable under Section 55(a) of the Abkari Act. Accordingly, Crime No.458 of 1997 was registered in the Kundara Police Station. On completing the
## **Crl.A.No.805 of 2005**
## **:-2-:**
investigation, a report was filed before the Judicial First Class Magistrate Court-I, Kollam. On appearance before that court, the accused was furnished with copies of all relevant prosecution records and the learned Magistrate committed the case to the court of the Sessions Judge, Kollam vide order dated 12.8.1999 in C.P.No.90/98 wherein S.C.No.476 of 1999 was instituted. The learned Sessions Judge has made over the case to the court of the Principal Assistant Sessions Judge for trial and disposal and thereafter, the case stood transferred to the Additional District and Sessions Judge. After framing charge and during the trial of the case, on the side of the prosecution, Pws.1 to 4 were examined and Exts.P1 to P4 were marked. MO1 was also identified and marked as material object. The trial court finally found that the accused was found in possession of arrack as alleged by the prosecution and accordingly, he is convicted for the offence under Section 55(a) of the Abkari Act. On such conviction, he is sentenced to undergo rigorous imprisonment for
## **Crl.A.No.805 of 2005**
## **:-3-:**
three years and to pay fine of Rs.1 lakh and in default, he is directed to undergo simple imprisonment for one year. It is the above conviction and sentence challenged in this appeal.
3. I have heard Sri.P.B.Suresh Kumar, learned counsel appearing for the appellant and Smt.Laliza, learned Public Prosecutor for the State.
4. Without going into the details of the prosecution allegation and its merits and also the evidence and materials on record, the learned counsel for the appellant submitted that CW1, the officer, who participated in the detection of the crime, is not examined in the trial court as he was in abroad and accordingly, his examination is dispensed with. According to the learned counsel, as per the case of the prosecution, it was PW4, who detected the crime and investigated the same and he was not competent at the relevant point of time to effect the seizure and the arrest the accused. Since according to the learned counsel, on the date of the alleged incident, as per SRO
## **Crl.A.No.805 of 2005**
## **:-4-:**
No.321 of 1996 of the Government of Kerala, the Police Officers of and above the rank of Sub Inspector of Police are authorised to exercise the powers conferred by Section 4 of the Abkari Act. Hence, according to the learned counsel, the evidence collected and connected with this case is liable to be rejected as the same was done by an incompetent officer of the Police. If that be so, the findings of the court below and the conviction and sentence imposed on the appellant are liable to be set aside.
5. Smt.T.Y.Laliza the learned Public Prosecutor fairly conceded that on the date of the occurrence in the present case, the Assistant Sub Inspector of Police in the Kerala Police is not empowered to exercise powers under Sections 40 to 53 of the Abkari Act.
6. In the light of the above contention of the learned counsel for the appellant and the submission of the learned Public Prosecutor, I am of the view that this Court need not go into the details of the
## **Crl.A.No.805 of 2005**
## **:-5-:**
other aspects of the case. A single Judge of this Court in the decision reported in **Sabu** v. **State of Kerala** [2007(4) KLT 169] has held that the Assistant Sub Inspector of Police is not an authorised officer to detect the crime and investigate such crime under the Abkari Act, 1077. The said decision is affirmed by a Division Bench of this Court in the decision reported in **Subash** v. **State of Kerala** [2008(2) KLT 1047]. In the present case, admittedly, the crime was detected and seizure was effected and also the investigation was conducted to certain extent by PW4, who was then working as Assistant Sub Inspector of Police, Kundara Police Station, who was not authorised and competent as per the above notification. In the light of the above decision, according to me, the findings of the court below and conviction recorded against the appellant on the basis of the evidence of PW4, who is an incompetent official to effect search, seizure and arrest of the accused as per Sections 40 to 53 of the Abkari Act, are illegal and improper, particularly in the absence of any notification
## **Crl.A.No.805 of 2005**
## **:-6-:**
conferring those powers upon an officer like PW4.
Therefore, the above appeal is allowed setting aside the judgment dated 26.4.2005 in SC No.476 of 1999 on the court of Additional District and Sessions Judge, (ADHOC) Court-I, Kollam and the appellant/accused is acquitted of all the charges levelled against him and he is set at liberty after setting aside the bail bond executed by him.
sd/-
**V.K.MOHANAN, Judge**
## **MBS/**
-true copy-
P.S.TO JUDGE.
## **Crl.A.No.805 of 2005**
**:-7-:**
**V.K.MOHANAN, J** .
CRL.A.No. 434 OF 2003
## **Crl.A.No.805 of 2005**
## **:-8-:**
## **JUDGMENT**
Dated:11.11.2011
