An investigating officer must be authorized and operate within their jurisdiction for legal proceedings to be valid under the Abkari Act.

JUDGMENT

This appeal is preferred by the accused against the conviction and sentence in S.C.No.260/2002 of Additional Sessions Judge (Adhoc-1), Kasaragod u/s.55(b) and (g) of the Abkari Act . The charge against the appellant is that on 20.12.2000 at 3.30 p.m., the appellant was found manufacturing arrack in the property of one Thankachan, Kotahanamkadu in Balal Village by the Sub Inspector of Police, Vellarikundu Police station. Accused was arrested and the contraband articles were seized after preparing a mahazar. Reaching at the Police Station, he registered a crime, after completing investigation, laid charge before Judicial First Class Magistrate Court-II, Hosdurg from there the case was committed to Sessions Court. Subsequently, it was made over to Additional Sessions Judge, Adhoc-I, Kasaragod.

2. During trial, prosecution examined PW1 to PW3 and marked Exts.P1 to P6 as documentary evidence. The material objects MO1 to MO3 were admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Magistrate convicted him. Being aggrieved by that, he preferred this appeal.

3. There was no representation for the appellant, hence this Court appointed Adv. C.K. Sreejith as the counsel to provide legal aid to the appellant. The learned counsel appearing for the appellant contended that there is no independent witness to prove the seizure of the seized article. S.I. of Police, Chittarikkal Police Station has no jurisdiction to investigate the crime as per the direction of C.I. Vellarikundu which is outside the jurisdiction of the Chittarikkal Police Station. No notification has been produced to show that he was empowered to conduct investigation in this case also.

4. The learned Public Prosecutor admitted that no notification has been issued so far conferring such power to Chittarikkal Sub Inspector.

5. According to Section 4 (d) of the Abkari Act , the Government may, by notification in the Gazette, appoint officers to perform the acts and duties mentioned in Section 4 0 to 53 of this Act. According to Section 4 (e), the Government may appoint subordinate officers of such classes and with such designations, powers and duties under this Act as the Government may think fit. According to Section 5 , the Government may from time to time make rules prescribing the powers and duties under the Act to be exercised and performed by Abkari Officers of the several classes. According to Section 3(2) of the , an “Abkari Officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Section 4 or 5. Therefore, notification conferring the power to exercise duties mentioned in Sections 40 to 53 is necessary by appropriate Government order.

6. As per SRO 321/96 dated 23.9.1996, the Government have appointed all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department within their respective jurisdiction as Abkari Officers vested with power u/s.40 to 53 of the Abkari Act .

The notification SRO No.321/1996 reads as follows:

“SRO No.321/96.- In exercise of the powers conferred by Section 4 of the Abkari Act , 1 of 1077 the Government of Kerala hereby appoint all Police Officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective jurisdiction for the purposes of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 2, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the Sections aforesaid.

This notification shall come into force with immediate effect. (GO(P) No.69/96/TD dt. 29