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2011 DIGILAW 54 (KER)

Baiju S/o. Inasu v. State of Kerala

2011-01-14

THOMAS P.JOSEPH

body2011
ORDER : Thomas P. Joseph, J. The Assistant Sub Inspector of Police who claims to have the grade of a Sub Inspector claimed to have detected the offence involved in these cases, under Section 15(c) of the Abkari Act (for short, "the Act"). The allegation is that on 03.10.2010 between 1.15p.m and 1.30p.m he, while on patrol duty found petitioners engaged in consuming liquor at a public place. The Assistant Sub Inspector registered Crime Nos. 830 and 831 of 2010, respectively investigated and submitted final report in the cases before learned Judicial First Class Magistrate, Kodungallur as aforesaid alleging commission of offences under Section 15(c) of the Act. Learned Magistrate took cognizance of the said offence against petitioners and filed S.T. No. 6540 and 6541 of 2010. Petitioners challenged Annexures-A and B, FIR and final report and further proceedings in Crime Nos.830 and 831 of 2010 of Valappad Police Station on various grounds including that the Assistant Sub Inspector though claiming to have the grade of Sub Inspector was not authorised to detect the offences, register and investigate the case and submit final report and hence learned Magistrate could not have taken cognizance of the offences against petitioners. It is contended that no chemical examination of the liquid allegedly seized was conducted and hence no charge would lie. A further contention is that perusal of Annexures-A and B in these cases would show the falsity of the cases set up by the investigating officer. 2. I have heard learned counsel for petitioners and learned Public Prosecutor. So far as the authority of the Assistant Sub Inspector to detect the offences, investigate and submit final report and the jurisdiction of the learned Magistrate to take cognizance of such a report is concerned, learned counsel has invited my attention to Sections 3(2), 4(d), 50 and 50A of the Act. Reliance is placed on the decisions in Subash v. State of Kerala ( 2008(2) KLT 1047 ), Subramaniyan v. State of Kerala ( 2010(2) KLT 470 ) and Saji @ Kochumon v. State of Kerala ( 2010(3) KLT 471 ). Learned counsel has invited my attention to the notification SRO No.321 of 1996 empowering certain classes of officers in the police department to exercise powers of the Abkari officers. 3. Learned counsel has invited my attention to the notification SRO No.321 of 1996 empowering certain classes of officers in the police department to exercise powers of the Abkari officers. 3. Section 50(2) of the Act states that on completion of the investigation, "the Abkari Officer" shall forward to a Magistrate empowered to take cognizance of the offence on a police report, the report in accordance with sub section (2) of section 173 of the Code of Criminal Procedure. The procedure to be adopted on receipt of such report is provided under Section 50A of the Act. Section 3(2) of the Act defines "Abkari Officer" as meaning, the Commissioner of Excise or any other officer or other person lawfully appointed or invested with the power under Sections 4 or 5 of the Act. Section 4 deals with power of the Government to appoint an officer to control administration of abkari department and sub clause (b) states that the Government may appoint any person other than the Commissioner of Excise to exercise all or any of the powers and to perform all or any of the duties of the Commissioner of Excise subject to the control of the Government. Section 5 empowers the Government to prescribe powers and duties under the Act to be exercised and performed by Abkari officers of several classes. 4. Reference can also be made to notification SRO No.321 of 1996 which states that in exercise of the power conferred by Section 4 of the Act the Government appointed 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 branch to exercise all the powers and to discharge all the duties conferred and imposed on abkari officers in the sections referred to in the notification. In other words, it is the police officer of and above the rank of a Sub Inspector who is invested with the power of Abkari Officer. Indisputably, alleged detection of the offence in the present case, its investigation and submission of final report are all done by an Assistant Sub Inspector who claims to have the grade of a Sub Inspector. That, he is given a grade of a Sub Inspector does not mean that he is a Sub Inspector. Indisputably, alleged detection of the offence in the present case, its investigation and submission of final report are all done by an Assistant Sub Inspector who claims to have the grade of a Sub Inspector. That, he is given a grade of a Sub Inspector does not mean that he is a Sub Inspector. He continues to be an Assistant Sub Inspector though having the grade of Sub Inspector. 5. In Subash v. State of Kerala (supra), Division Bench of this court referred to Sections 2(3) and 50 of the Act to hold that a Magistrate cannot take cognizance of an offence under the Act based on a report filed by the Assistant Sub Inspector of Police who is not an Abkari Officer as defined under the Act and that illegality and irregularity in investigation is different from lack of power to initiate prosecution. In Subramaniyan v. State of Kerala (supra) question involved was power of an Assistant Sub Inspector. Learned Judge held that Assistant Sub Inspector cannot be treated as authorised or competent officer as contemplated under Sections 4(d) and 70 of the Act. In the third of the decision relied by the learned counsel (Saji @ Kochumon v. State of Kerala) the question considered was whether the Sub Inspector of Police authorised to act as Abkari Officer can exercise jurisdiction beyond the territorial limits of his station and whether the final report laid by another Sub Inspector is legal. It was held that the Sub Inspector can exercise jurisdiction only within the territorial limits of his station. Thus, going by the above decision in the light of the notification SRO No.321 of 1996 referred to above, it leaves me no doubt that the Assistant Sub Inspector though given the grade of a Sub Inspector but not being a Sub Inspector was not competent to investigate and submit final report in the case. It follows that investigation and submission of final report are without jurisdiction, not merely an irregularity or illegality and hence learned Magistrate could not have taken cognizance on such report. On this point, I am of the view that petitioners are entitled to succeed. In the light of that, it is unnecessary to go into other questions urged by petitioners. 6. On this point, I am of the view that petitioners are entitled to succeed. In the light of that, it is unnecessary to go into other questions urged by petitioners. 6. Resultantly these petitions are allowed and Annexures-A and B, FIR and Final Report in Crime Nos.830 and 831 of 2010 of Valappad Police Station, cognizance taken by learned Judicial First Class Magistrate, Kodungallur on the said final reports and all proceedings in S.T. Nos. 6540 and 6541 of 2010 of that court will stand quashed.