JUDGMENT

Dated this the 4th day of February, 2021 Appellant challenges the conviction and sentence imposed by judgment dated 20.1.2006 in S.C. No.275 of 2002 on the files of the Additional Sessions Court, Fast Track (Ad hoc), Mavelikara. By the impugned judgment, the appellant has been convicted for the offence under Sections 8(1), (2) and 55(a) of the Abkari Act, 1077, and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1,00,000/- for the aforesaid offences and in default of payment of fine, to undergo rigorous imprisonment for one year. 2. The prosecution case was that on 6.2.2001 at 11 a.m., the preventive officer attached to the Kayamkulam Excise Range, while on patrol duty, found the accused in possession of 700 ml of illicit arrack and after seizing the contraband and arresting the accused, a crime was registered by him and thereafter the offence was investigated by PW5.

3. In order to prove the prosecution case, PW 1 to PW5 were examined and Exts.P1 to P6 were marked, apart from the material object MO1, while the defence examined DW1.

4. After appreciating the evidence adduced, learned Sessions Judge found the accused guilty of the offence alleged and sentenced him to imprisonment and fine, as mentioned earlier.

5. I have heard Adv.R.Gopan, the learned counsel for the appellant as well as Adv.Dhanil M.R., the learned Public Prosecutor.

6. It is pointed out by the learned counsel for the appellant that PW1, who detected and registered the crime, was only a Preventive Officer who was not authorised under law to register the crime. Learned counsel for the appellant invited my attention to S.R.O. No.234/1967 dated 10.8.1967 to illustrate that Preventive Officer, though entitled to search, detect and seize, they are not authorised under Section 4 as abkari officers to register a crime under the Abkari Act.

7. The learned Public Prosecutor opposed the submission of the learned counsel for the appellant and stated that during the stage of evidence no questions have been put to PW1 regarding his authorisation and that at this appellate stage accused cannot question the authority of the officer, who registered the crime. It was also pointed out that PW5 had stated that the authorisation of PW1 to register a crime as officer-in-charge had already been mentioned in the final report.

8. I have considered the rival contentions. It is already a settled proposition that preventive officers are not authorised to register a crime under the Abkari Act. The authority of a Preventive Officer under the Abkari Act stops with detention, search, seizure and even arrest but nothing further. Authority to register a crime under the Abkari Act have not been given to a Preventive Officer. The aforesaid proposition has already been laid down by this Court in Crl.Appeal No.156 of 2013 wherein it was held as follows:

“As per the Government notification issued in 1967, only Excise Inspectors and the other officers above him, are competent to register FIR, or to conduct investigation, or to submit final report. Only the powers of arrest and seizure are given to the Preventive Officers as per the Government Order. The crime and occurrence report registered by a wrong officer, or an incompetent person will vitiate the whole prosecution. A prosecution built on such a crime and occurrence report registered by a wrong officer must necessarily collapse. There is nothing to show that the Preventive Officer was in fact in charge of the Excise Inspector on the date of detection. This Court has in so many decisions settled that only authorised officers can discharge the functions under the Kerala Abkari Act as Abkari Officers, and they can discharge functions only if they are authorized under Section 4 of the Kerala Abkari Act. As the officer in charge of the Excise Inspector, a Preventive Officer can discharge so many functions including administrative functions. But to discharge the functions under the Kerala Abkari Act, including inv