AJI @ AJIKUTTAN Vs. STATE OF KERALA

JUDGEMENT

(1.) APPEALS filed under Section 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 under Section 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.

(2.) 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.

(3.) 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 under Section 4 of the Act, SRO No. 321 of 1996 was promulgated and it came into effect on 29.03.1996. It reads as follows: