Raghavan vs S. Bathery and The State of Kerala

V.K. Mohanan, J.—The above appeal is directed against the judgment dated 31/5/2005 in S.C. No. 20 of 2005 of the court of the Additional Sessions Judge (Adhoc)II, Kalpetta at the instance of the sole accused therein, challenging his conviction and sentence for the offence u/s 55(a), (b) & (g) of the Abkari Act. The prosecution allegation is that on 24/10/2002 at about 10 p.m. the accused was found in illicit distillation of arrack in a temporary shed at his property in Kolot, Noolpuzha amsom. On the above allegation, Crime No. 430 of 2002 was registered in the Sulthanbathery Police Station for the offence punishable u/s 55(a), (b) & (g) of the Abkari Act and on completing the investigation, a report was filed in the Judicial First Class Magistrate Court-I, Sulthanbathery and the learned Magistrate committed the case to the Sessions Court, wherein S.C. No. 20 of 2005 was instituted and the case was made over to the present trial court. When the accused appeared, after hearing the prosecution as well as the defence the learned Judge framed a formal charge against the accused for the offence punishable u/s 55(a)(b) & (g) of the Abkari Act which when read over and explained to the accused he denied the same and pleaded not guilty. Consequently the prosecution from their part examined PWs. 1 to 7 and produced Exts. P1 to 8 documents. MOs. 1 to 7 were also identified and marked as material objects. Finally, the trial court found that the prosecution has clearly succeeded in proving its case and accordingly found that the accused is guilty for the offence charged against him and accordingly he is convicted thereunder. Consequently the accused is sentenced to undergo simple imprisonment for three years and to pay fine of Rs. 1,00,000/- in default he is directed to undergo simple imprisonment for three months u/s 55(a) of the Abkari Act. According to the learned Judge, as the other offences namely under Sections 55(b) & (g) are committed during the same transaction, no separate sentence is required and not awarded. However, set off is allowed u/s 428 of Cr.P.C. It is the above finding and order of conviction and sentence that are challenged in this appeal.

I have heard Sri. Abdul Khadir, the learned Public Prosecutor for the State. Having regard to the facts and circumstances involved in the case, it is an undisputed fact that the search, seizure and arrest in the present case was done by PW. 1, who was then working as ASI of Police of Sulthan Bathery Police Station on 24/10/2002. No doubt as on 24/2/2002, the A.S.I. of Police in the Kerala Police Department were not authorised or empowered to exercise any of the powers under Sections 31 to 50 of the Kerala Abkari Act. As such PW. 1 was not authorised to effect seizure and arrest of the accused under the Abkari Act. The learned Public Prosecutor has not controverted that the A.S.I. in the Department of Police in the Kerala State were not authorised to exercise any of the above powers and no notification as contemplated u/s 31 of the Abkari Act was in force as on 24/10/2002, conferring such powers upon A.S.I. of Police. As per S.R.O. No. 321 of 1996, which was in force, as on 24/10/2002 the ASI of Police are not authorised officer to detect the offence u/s 55 of the Abkari Act. The position is now well settled in view of the decision of the Division Bench reported in Subash Vs. State of Kerala Thankamony Vs. State of Kerala ( 2007 KHC 3806), Sabu Vs. State of Kerala, and finally as per the decision of this Court reported in Unni Vs. State of Kerala ( 2009 (2) KHC 661). In the light of the above settled position particularly in view of the authorities cited supra and on the basis of the undisputed fact that the search and seizure was made by PW. 1, who was then working as ASI, Sulthanbathery Police Station on 24/10/2002, on which date he was not authorised or empowered to exercise any such powers as contemplated by the Abkari Act and therefore on the above sole ground the appeal is bound to be allowed by acquitting the accused.

In the result, this appeal is allowed setting aside the judgment dated 31/5/2005 in S.C. No. 20 of 2005 of the court of the Additional Sessions Judge, (Adhoc)-II, Kalpetta and the appellant/accused is acquitted of all the charges leveled against him and the bail bond, if any, executed by him stands cancelled and he is set at liberty.