Koshy, J.

Due to the apparent conflicting views taken by the learned Single Judges in the decisions reported in Vikraman v. State of Kerala (ILR 2006(4) Kerala 932) and Sabu v. State of Kerala [2007 (3) KLJ 157] this case is referred to the Division Bench. The question to be answered is whether Magistrate can take cognizance of an offence under the Abkari Act on the basis of a report filed by Assistant Sub Inspector of Police, who is not an Abkari Officer as defined under the Abkari Act.

2. This appeal is filed against the judgment in S.C.No.219 of 2000 on the file of the District and Sessions Court, Fast Track (Ad hoc- II), Kozhikode. Appellant faced trial for offence under Section 55(a) of the Abkari Act. The report (concerned) was filed by Assistant Sub Inspector of Police, Edacheri Police Station. The allegation was that the appellant was found in possession of 19 bottles, each containing 180 ml. (total 35 litres) of Indian made foreign liquor without having permit or the sticker of Kerala State Beverages Corporation as against the provisions of the Abkari Act and Foreign Liquor Rules and therefore he committed offence under Section 55(a) of the Abkari Act. According to prosecution, he was found in possession of imported liquor and he was possessing the same in the course of import illegally violating the provisions of the Abkari Act and the Rules made thereunder. The Magistrate came to the conclusion that the appellant was guilty of the offence under section 55(a) of the Abkari Act and he was convicted thereunder and sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for another 6 months. The appellant denied the entire charges. Apart from the above, it was contended that even if he was found in possession of 19 bottles each containing 180 ml. of Indian made foreign liquor, there is no evidence to show that it was imported. He was alleged to have been found in possession of the same near a bus stop. He was not transporting the above item from Mahe as alleged. It was further contended that it was in evidence that he was not possessing the same in the course of import. It was further contended by him that the total quantity was possessed below 3= litres of foreign liquor and possession of the above is not punishable at all and at the maximum only under section 63. But the fact that no sticker of the Beverages Corporation is found in the bottle showing that it is either imported illegally or manufactured without licence. Apart from the above, the main contention raised by the appellant was that the officer who filed the report is not an Abkari officer and the entire proceedings are vitiated. He based his argument on section 50 of the Abkari Act, which reads as follows:

"Section 50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-

(1) Every investigation into the offence under this Act shall be completed without necessary delay.

(2) As soonas investigation into the offences under this Act is completed, the Abkari Officer shall forward a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub section (2) of section 173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974). It shows that the Magistrate can take cognizance only on the basis of a report filed by the Abkari Officer. The very jurisdiction of the Magistrate to try the case starts from filing of a report under section 173 (2) of the Abkari Act by the Abkari Officer.

An Abkari Officer is defined under sub-section (2) of section 3, which reads as follows:

"Abkari Officer" means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Section 4 or 5."

The Government by notification dated 29.3.1996 authorized all police officers above the rank of Sub Inspector of Police to discharge all the duties conferred on an Abkari Offi