Judgment · High Court · 2009
Case at a glance
Outcome
Allowed
In the result, the appeal is allowed
Provisions considered
Key paragraphs
- Para 66. A Division Bench of this Court in Subhash v. State of Kerala (2008(2) KLT 1047) has held that Assistant Sub Inspectorof Police is not an Abkari officer as contemplated under Section 2(3) and Section 50 of the Abkari Act and that he is not…
Judgment
P.Q. BARKATH ALI, J. -------------------------------------- CRL. APPEAL 1925 OF 2003 --------------------------------------Dated: JULY 7, 2009JUDGMENT This appeal is by the accused in Sessions CaseNo.116/2000 on the file of the Additional District and SessionsJudge (Fast Track Ad Hoc – II), Kozhikode, challenging hisconviction under sec.55(a) of the Abkari Act and sentence toundergo simple imprisonment for one year and to pay a fine ofRs.1 lakh and in default to undergo simple imprisonment for afurther period of six months.
The case of the prosecution as shaped in evidence beforethe lower court was that on April 30, 1999 at about 9.15 a.m.the accused was found to be in possession of 36 bottles of IndianMade Foreign Liquor (180 ml. each) behind the house bearingdoor No. CP V/482 of Muthukad in Chakkittapara panchayatwithout having any permit and thus committed the offencespunishable under sec.55(a) of the Abkari Act, sec. 15 of AbkariAmendment Ordinance and Rule 9 of Foreign Liquor Rules. The CRL. APPEAL 1925 OF 2003 2appellant was arrested on the spot.
Judicial Magistrate of First Class, Perambra, tookcognizance of the case as CP No.15/1999 and committed it tothe Sessions Court, Kozhikode. Initially the case was made overto the Assistant Sessions Court, Quilandy, and thereafter it waswithdrawn and made over to the trial court for trial and disposal. The appellant/accused on appearance before the lower courtpleaded not guilty to a charge under sec.55(a) of the Abkari Actand Rule 9 of Foreign Liquor Rules. P.Ws.1 to 4 were examined, Exts.P1 to P11 were marked and M.Os.1 and 2 were produced onthe side of the prosecution before the lower court. Whenquestioned by the lower court under sec.313 Cr.P.C., theappellant/accused denied the entire case of the prosecution. Noevidence was adduced on the side of the accused before the courtbelow. A photocopy of the identity card of the appellant wasmarked as Ext.D1.
The trial court on an evaluation of evidence found theappellant guilty of the offence punishable under sec.55(a) of the Abkari Act and Rule 9 of Foreign Liquor Rules, convicted him andsentenced him as aforesaid. The appellant has challenged his CRL. APPEAL 1925 OF 2003 3conviction and sentence in this appeal.
Sri P. Santharam, learned counsel fore the appellant, argued that the investigation was conducted and the charge inthis case was laid by PW.4, the then Assistant Sub Inspector of Police, that the Assistant Sub Inspector has no sanction to detector investigate the crime under the Abkari Act, that he is not anabkari officer as contemplated under sec.50 of the Abkari Act andthat therefore the appellant/accused has to be acquitted on thatground itself. There is force in the above argument of the learnedcounsel for the appellant.
Operative part
A Division Bench of this Court in Subhash v. State of Kerala (2008(2) KLT 1047) has held that Assistant Sub Inspectorof Police is not an Abkari officer as contemplated under Section 2(3) and Section 50 of the Abkari Act and that he is not competentto conduct investigation and laying the charge. The sameprinciple has been upheld by this Court in Unni v. State of Kerala(2009(2) KHC 661). In the light of the principles laid down inthe above decisions, I am of the view that the entire proceedingsfrom taking cognizance, trial and sentence etc. are illegal andthat the accused has to be discharged. I am not entering into the CRL. APPEAL 1925 OF 2003 4merits of the case as the appellant/accused has to be dischargedon the above ground. In the result, the appeal is allowed. The conviction andsentence imposed by the lower court against the accused are setaside and the appellant is discharged for lack of jurisdiction intaking cognizance of the case by the Magistrate in the absence ofa report filed by the Abkari officer as defined under Section 5(2)of the Act who is specially empowered under Section 50 of the Abkari Act. Fine, if any, remitted by the appellant shall berefunded to him. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE mt/-
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: In the result, the appeal is allowed
Which statutory provisions did this judgment involve?
Code of Criminal Procedure, 1973 — s. 313.
Which court decided this case, and when?
Kerala High Court, on 07 Jul 2009. The bench was P Q BARKATH ALI.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.