Aji @ Ajikuttan vs State of Kerala

A. Hariprasad, J.—Appeals filed u/s 374(2) of the Code of Criminal Procedure (for short, "Cr.P.C.") Accused 1 and 2, who convicted by the learned Additional Sessions Judge (Adhoc-II), Kollam for an offence u/s 8(2) of the Abkari Act (for short, "Act"), have separately challenged the conviction and sentence in these appeals. Since the evidence in both these cases being the same, they are heard together and disposed by this common judgment.

Prosecution case is that on 02.05.2002 at 8.15 p.m. three persons were found travelling in a jeep. P.W. 5, the detecting officer intercepted the jeep and found that they carried 35 litres of arrack in the jeep. 1st accused was the driver of the jeep. Accused 2 and 3 were sitting in the back side of the jeep with a can. Prosecution would contend that after arresting the accused, taking samples and preparing material documents, the crime was registered. After committal of the case to the Court of Sessions, learned Additional Sessions Judge tried the case. Crl. Appeal Nos. 750 & 1830 of 2005. During the trial, 8 witnesses were examined and four documents marked on the side of prosecution. D.W. 1 was examined on the side of the defence.

Heard the learned Senior Counsel for the appellant and the learned Public Prosecutor.

Learned Senior Counsel for the appellants contended that the prosecution has to fail on an incurable illegality. The detection and entire investigation, except filing the charge, was conducted by P.W. 5, who was an Assistant Sub Inspector of Police at the material time. P.W. 5 deposed that when he, along with Police Constables, was on patrol duty, he found the jeep driven by the 1st accused coming in excessive speed. When the jeep was stopped, P.W. 5 found two persons sitting on the rear seat of the jeep. They were holding a can. It was having a capacity of 35 litres. On questioning, it was found that the accused persons were transporting illicit arrack. P.W. 5 arrested the accused for violating the provisions of the Act. P.W. 5 took 180 ml. arrack in a bottle as sample, which was properly sealed. He prepared Ext. P1 mahazar. He registered a crime. Thereafter, he produced the accused before the learned Magistrate. He produced the contraband before the court along with Ext. P3 property list. P.W. 5 filed a requisition for the chemical analysis of the liquor. On going through the evidence of P.W. 5, it is seen that he has done not only the detection, but almost the entire investigation in this case. Crl. Appeal Nos. 750 & 1830 of 2005. Learned Senior Counsel for the appellants contended that the Assistant Sub Inspector of Police is not an authorised officer to detect and conduct investigation of offences under the Act. Section 4 of the Act deals with the Government''s power to appoint an Abkari Officer defined in Section 3(2) of the Act. In exercise of the power u/s 4 of the Act, SRO No. 321 of 1996 was promulgated and it came into effect on 29.03.1996. It reads as follows:

S.R.O. No. 321/96.- In exercise of the powers conferred by section 4 of the Abkari Act, I of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective Jurisdiction for the purposes of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the sections aforesaid. This notification shall come into force with immediate effect. (G.O.(P) No. 69/96/TD dt. 29-03-1996.

On a bare reading of the SRO, it can be seen that the notification Crl. Appeal Nos. 750 & 1830 of 2005 empowers Police Officers of and above the rank of Sub Inspector of Police and that too, who are in charge of law and order and working in the general executive branch of the Police Department. Here, P.W. 5 has no case that he is an Officer authorised by the SRO to conduct investigation. Moreover, there is no evidence adduced on the side of the prosecution to hold that P.W. 5 was holding the charge of the Sub Inspector of Police at the material time. In the absence of any such evidence, it can only be found that the detection and investigation in this case were done by a Police Officer, who is not empowered to do so as per the provisions of the notification. Hence, whatever be the regularity and propriety of the acts performed by P.W. 5 and other Officers, the prosecution has to fail for the lack of competence of P.W. 5 to detect the offence and investigate the matter. Therefore, I find there is force in the submission of the learned Senior Counsel that the prosecution is not legally sustainable for want of jurisdiction of the detecting and investigating officer.

In the result, the appeals are allowed. Conviction of the appellants u/s 8(2) of the Abkari Act in S.C. No. 353 of 2004 on the file of Additional Sessions Judge (Adhoc-II), Kollam are hereby set aside. They shall be set free forthwith, if not wanted in any other case. Their bail bonds shall stand cancelled. If any amount has been deposited by the appellants as a condition for securing bail, it shall be returned to Crl. Appeal Nos. 750 & 1830 of 2005 them.

All pending interlocutory applications will stand dismissed.