Prosecution is flawed if registered by an unauthorized officer under the Kerala Abkari Act, leading to acquittal.

JUDGMENT

The appellant was the accused in S.C.No.163/2012 on the files of the Additional Sessions Court-I, Kasaragod. He challenges the conviction and sentence imposed on him by judgment dated 02.05.2015 for the offence punishable under Section 8 (1) and (2) of the Abkari Act, 1077 (for short, Act).

2. As per the impugned judgment, the appellant has been sentenced to undergo simple imprisonment for a period of four years and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for six months.

3. The prosecution case is that the accused had on 14.01.2009 at about

3.50 pm was found in possession of 3150 packets of arrack, each containing 100 ml in seven white plastic sacks and thereby committed the offences alleged.

4. In order to prove the prosecution allegations, PW1 to PW5 were examined and Ext.P1 to Ext.P12 were marked. After analysing the evidence adduced, the trial court found the appellant guilty and sentenced him as mentioned above.

5. I have heard Sri.T.G.Rajendran, the learned counsel for the appellant as well as Smt.Sreeja V., the learned Public Prosecutor.

6. The sole point canvassed by the learned counsel for the appellant was that the crime was detected by PW1, who himself had registered the crime and as he was not authorised to register the crime, the accused ought to have been acquitted.

7. On a perusal of Ext.P6, the crime and occurrence report, it is evident that PW1 had himself registered the crime as a person-in-charge of the Excise Inspector. PW1 was not an Excise Inspector or an authorised officer to register a crime under the Abkari Act. No record has been produced in evidence to show that PW1 was an authorised officer at the relevant time.

8. In the decision in Mani @ Ramachandran v. State of Kerala [2017:

KER: 688] it has been observed that the detecting officer cannot be the same as the registering officer. Paragraph No.6, which is relevant, reads as follows :-

6. PW1 was only a Preventive Officer, and the crime was detected by him. Ext.P3 crime and occurrence report was also registered by the Preventive Offier. Of course, investigation was done by a competent person, and final report was also filed by a competent person. On these aspects, there is no dispute. As regards the competency of Preventive Officers to detect offences, to arrest accused, or to seize properties, there cannot be any dispute because as per the notification issued by the Government as S.R.O. 234 of 1967, Preventive Officers are given powers of arrest and seizure. But the other powers like registration of crime, or power of investigation or the power to file final report are not seen given to such categories of officers by the Government Order. In 2009, another Government Order was issued, giving powers to the Assistant Excise Inspectors also. But the said notification also does not confer any power of registration of crime, or investigation on Preventive Officers. PW1 may claim that he registered crime in his capacity as officer in charge of Excise Inspector. Of course, the prosecution has not produced any document to show that he was put in charge of the Excise Inspector on the relevant date. In evidence also, he has not stated that he had charge of the Excise Inspector. If at all he was in charge of the Excise Inspector, or that he registered crime as the Officer in charge of the Excise Inspector, the court cannot accept it for the reason that a crime can be registered under the Kerala Abkari Act only by the competent person. 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,