1. Petitioner the first accused was convicted and sentenced to rigorous imprisonment for three years and a fine of Rs. One Lakh for the offence under S. 55(i) of Kerala Abkari Act by Additional Assistant Sessions Judge, Alappuzha in S.C 346/1999. The accused challenged the conviction and sentence before Sessions Court, Alappuzha in Crl. A. 221/2001. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction as against the first accused but set aside the conviction and sentence as against second accused and acquitted him. First accused filed this revision challenging the conviction and sentence.

2. Prosecution case is that on 26.8.1998 PW 1 Sub Inspector of Police, Edathwa police station while on patrol duty along with PW 2 the police constable reached southern side of Neerettupuram market, they found three persons engaged in sale of arrack in front of cement godown owned by PW 5.

3. Seeing the police party, one person ran away and the other two, who are the accused, were apprehended. According to the prosecution petitioner was having a bottle with some liquid in his hands and second accused was holding a glass. PW 1 tested the liquid in the bottle and by smell and taste he was convinced that it is illicit arrack. Accused were arrested and bottle and glass were seized and sample of 150 ml from the bottle was taken and sealed and the remaining bottle and the glass were also sealed and Ext. P1 mahazar was prepared in the presence of PWs. 3 and 4 the attesting witnesses. Ext. P2 F.I.R was prepared and crime No. 123/1998 was registered. M.O.s were produced before the court on the requisition submitted to the court, sample was sent for chemical analysis and obtained Ext. P3 report of Chemical Analysis to the effect that it contain ethyl alcohol. Final report was submitted by PW 7, Sub Inspector of Veeyapuram police station after verification though investigation conducted by PW 6, the Assistant Sub Inspector of Police, Edathwa Police Station.

4. Petitioner and second accused pleaded not guilty. Learned Assistant Sessions Judge though on the evidence convicted the second accused also, learned Sessions Judge on re-appreciation of evidence found that evidence only show that second accused was holding a glass and as there is no evidence to prove that he was in possession of illicit arrack, he cannot be convicted. Thus he was acquitted. But accepting the evidence of Pws. 1 and 3 learned Assistant Sessions Judge convicted petitioner for the offence under S. 55(i) of Kerala Abkari Act. Learned Sessions Judge confirmed it. Learned counsel appearing for the petitioner argued that petitioner was arrested and illicit arrack was allegedly seized within the jurisdiction of Edathwa police station by PW 1 the Sub Inspector of Police and Ext. P2 F.I.R was prepared and the case was registered in Edathwa police station but final report was submitted not by the Sub Inspector of Edathwa police station but by PW 7, who is the Sub Inspector of Veeyapuram police station. It is argued that under S. 50 of Kerala Abkari Act, PW 7 Sub Inspector is not competent to file a final report in respect of an offence committed within the jurisdiction of Edathwa Police Station and learned Magistrate has no jurisdiction to commit the case or the learned Assistant Sessions Judge to take cognizance of the offence based on the final report and the final report submitted by PW 7 is to be treated as non est. Learned counsel would point out that as per S.R.O 321/1996, though a Sub Inspector of Police in charge of law and order was appointed as Abkari Officer for the purpose of Ss. 31 to 35,38,40 to 53 and 59 of the Act, it is only within their respective jurisdiction and if that be so, final report could have been submitted only by the Sub Inspector of Police, Edathwa or a superior officer and not by PW 7, the Sub Inspector of another police station and therefore, the cognizance taken, trial conducted and the conviction are all illegal and to be quashed. Reliance was placed on the decision of this court in Subrahmaniyan v. State Of Kerala (2010 (2) KLT 470) and Subash v. State Of Kerala (2008 (2) KLT 1047).

5. Learned Public Prosecutor argued that under S.R.O 321/1996 all Sub Inspectors of police are Abkari officers and as the final report was submitted by the Abkari Officer, neither the cognizance taken nor the trial or conviction is bad.

6. Sub-section (2) of S. 50 of Kerala Abkari Act provides that as soon as investigation into the offence under the Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-s. (2) of S. 173 of Code of Criminal Procedure. Abkari Officer is defined under S. 3(2), means Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under S. 4 or 5. S. 4 provide that Government may appoint an officer to control the administration of abkari department by notification in the gazette. Under clause (d) of S. 4 Government may by notification in the gazette appoint officers to perform the acts and duties mentioned in Ss. 40 to 53 (inclusive) of the Act. S. 5 provides that Government may from time to time make rules prescribing the powers and duties under the Act to be exercised and performed by the Abkari Officers of the several classes and regulating the delegation by the Government or by Commissioner of Excise, of any powers conferred by the Act or exercise in respect of Abkari revenue in any law for the time being in force. S.R.O 321/1996 was issued in exercise of the powers conferred by S. 4 of the Act by the State Government. Under the S.R.O Government of Kerala thereby appointed “all police officers on 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” to be Abkari Officers under the respective jurisdiction for the purpose of Ss. 31 to 35,38 and 40 to 53 and 59 of the Act and to exercise all the powers and discharge of all the duties conferred in Abkari Officer in the sections aforesaid. Therefore, by notification issued by the Government in exercise of the power provided under S. 4, a Sub Inspector of Police in charge of law and order and working in the general executive branch of police department is appointed as Abkari Officer, within his respective jurisdiction to exercise the powers provided thereunder. The respective jurisdiction could only be the jurisdiction of that Sub Inspector. It can only be within the territorial limits of his police station. Therefore, Sub Inspector of Police, Edathwa is the Abkari Officer empowered by the Government to exercise the powers under Ss. 31 to 35,38 and 40 to 53 and 59 of Act. Therefore, the officer who is competent to file a final report as provided under S. 50 is only the Abkari Officer namely, Sub Inspector of Police, Edathwa or an officer superior to him.

7. The final report was submitted before the court by PW 7, in his capacity as Sub Inspector, Veeyapuram. The report does not disclose on what power or authority he submitted the final report when he is not the Abkari Officer competent to exercise the power under S. 50 of the Abkari Act within the territorial jurisdiction of Edathwa police station. The final report does not disclose that he was authorised by the Government to exercise the power under S. 50 of the Abkari Act in respect of jurisdiction of Edathwa police station. Though from the witness box PW 7 claimed that he was authorised by the Circle Inspector of police as per order in 83/1998 to file the report, no such order was produced either along with the final report or even at the time of evidence. In spite of the fact that PW 7 was cross examined with regard to the non production of the order as the final report does not disclose that he has been authorised by the Circle Inspector of Police much less by the order in 83/1998 to either verify or investigate or submit a report, it was not produced. If that be the case, it can only be found that PW 7 who laid charge is not the competent Abkari Officer authorised to file a final report as provided under S. 50 of Abkari Act in the case. Question is what is the consequence of the cognizance taken on that final report submitted by an officer who is not the Abkari Officer authorised to file final report and the subsequent trial.

8. The Division Bench of this court in Varkey v. State (1993 (1) KLT 72) following the earlier Division Bench decision in Prabhakaran v. Excise Circle Inspector (1992 (2) KLT 860) held that when the Excise Inspector who filed the complaint has no authority to file the complaint, court has no jurisdiction to take cognizance or frame charge or try the accused and “the trial which followed the said charge must be treated as non est, because it was done without jurisdiction. The Full Bench of this court in Abdul Rehman v. State of Kerala (1995 (1) KLT 234 (F.B)) upheld the decision. A later Division Bench in Subash v. State Of Kerala (2008 (2) KLT 1047) held that when the Magistrate has no jurisdiction to take cognizance of the case on a report filed by a person other than an Abkari Officer as defined under S. 50 of the Abkari Act, there is total lack of jurisdiction for taking cognizance of an offence if cognizance is taken on a final report not submitted by an Abkari Officer and it is not an irregularity covered by Chapter XXXV of Code of Criminal Procedure but a total illegality and therefore, the cognizance taken, trial conducted and the conviction and sentence are all illegal. It is followed by a learned Single Judge in Subrahmaniyan v. State Of Kerala (2010 (2) KLT 470). In view of the legal position, it can only be found that cognizance taken on the final report submitted by PW 7 the Sub Inspector of Police, Veeyapuram who has no authority to file a final report in the case and the cognizance taken, charge framed and the trial and consequent conviction and sentence awarded against the petitioner are illegal and non est. Hence it can only be set aside.

9. Petition is allowed. Conviction and sentence of the petitioner, the first accused by Additional Assistant Sessions Judge, Alappuzha in S.C 346/1999 as confirmed by Additional Sessions Judge in Crl. A. 221/2001 is set aside. Petitioner is set at liberty.