Challenge in this revision petition is against the judgment by the lower appellate court (Sessions Court) confirming the conviction of the revision petitioner under Section 55(a) of the Abkari Act (in short, “the Act”).
2. Facts, in brief, are as follows: On 22.07.1999 at about 10.30 a.m., the revision petitioner was found in possession of 350 ml. of arrack in a can having ten litres capacity. He was standing by the side of a public road near a bus stop.
3. Court below examined six witnesses and marked nine documents on the side of the prosecution. MO1 is the plastic can said to have been possessed by the revision petitioner.
4. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.
5. Learned counsel for the revision petitioner contended that there is a glaring illegality in this case, which makes the conviction and sentence totally unsustainable in law as the case was investigated by an officer, who cannot be designated as an Abkari Officer under the provisions of the Act. Section 3(2) of the Act defines 'Abkari Officer' in the following terms:
“Abkari Officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5.”
Sections 4 and 5 of the Act would show that the Government may appoint an officer to control the administration of the Abkari Department and also it may appoint any person as Abkari Officer conferring powers and duties on him under the Act. The relevant notification issued by the Government in exercise of the powers under Sections 4 and 5 of the Act shows that all Police Officers, of and above the rank of Sub Inspectors, alone are designated as Abkari Officers under the Act. Testimony of PW5 clearly shows that he was an Assistant Sub Inspector of Police at the material time and he conducted the investigation in this case. Therefore, even without going into other aspects, it can be held that the investigation is vitiated, since it was done by an incompetent officer. For that sole reason, the revision petition is to be allowed.
In the result, the revision petition is allowed. Conviction of the revision petitioner in Sessions Case No.248 of 2001 on the file of II Additional Assistant Sessions Judge, Kozhikode, which was confirmed in appeal by the Additional Sessions Judge, Kozhikode in Crl.Appeal No.315 of 2002 is hereby set aside. Revision petitioner shall be set free forthwith if not wanted in any other case. His bail bond shall stand cancelled.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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