BAIJU Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 S.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 S.15(c) of the Act. Learned Magistrate took cognizance of the said offence against petitioners and filed ST 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 authorized 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 S.3(2), S.4(d), S.50 and S.50A of the Act. Reliance is placed on the decisions in Subash v. State of Kerala, 2008 (2) KHC 703 : 2008 (2) KLD 67 : 2008 (2) KLT 1047, Subramaniyan v. State of Kerala, 2010 (2) KHC 552 : 2010 (2) KLT 470 : ILR 2010 (3) Ker. 504 : 2010 (2) KLJ 217 and Saji @ Kochumon v. State of Kerala, 2010 (3) KHC 259 : 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.) S.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 S.173 of the Code of Criminal Procedure. The procedure to be adopted on receipt of such report is provided under S.50A of the Act. S.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 S.4 or 5 of the Act. S.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. S.5 empowers the Government to prescribe powers and duties under the Act to be exercised and performed by Abkari officers of several classes.