State of Kerala vs Balakrishna Pillai

Anna Chandy, J.—This is a reference u/s 438 (1) of the Criminal Procedure Code made by the District Magistrate on a revision petition filed by the Collector to set aside the order passed by the Magistrate, Kattakkada u/s 61A (1) of the Prohibition Act that an amount of Rs. 250/- out of the fine of Rs. 500/- collected will be given to the Sub-Inspector of Police, Kattakkada. In C.C. No. 1146 of 1962 on the file of the Sub-Magistrate Kattakkada, the learned Magistrate convicted the accused on his plea of guilty to the charge u/s 8 (1) (j) and section 9 of the Prohibition Act and Section 51 of the Police Act, the allegation being that on 26--10--1962 at 11 A.M. the Sub-Inspector of Police found the accused in an intoxicated condition and behaving in a disorderly manner on the public road at Paruthiapally within the Prohibition area of the Nedumangad Taluk. The accused admitted the offence and had no cause to show against his conviction. Hence he was convicted u/s 8 (1) (j) of Act XIII of 1950 and Section 51 of the Police Act and sentenced to the minimum sentence of Rs. 500/-fine provided for the first offence u/s 8 (1) (j) of the Prohibition Act. The learned Magistrate without giving any reason ordered u/s 61A that Rs. 250/- out of the fine if collected will be given to the Sub-Inspector of Police, Kattakkada who has according to the learned Magistrate "detected" the offence. The Trivandrum District Collector sought to get that order set aside by a revision petition which has occasioned this reference.

The order passed by the Sub-Magistrate is unsustainable for more reasons than one. The case against the accused is that he was found in an intoxicated condition and behaving riotously in a public place. The offence comes squarely within the purview of Section 51 of the Police Act and since it happened in a prohibition area, Section 9 of the Act can also be included, but Section 8(1) (j) does not come into the picture as there was no case that he consumed or bought the liquor in a prohibition area.

Section 61 A of the Act contemplates the payment of a portion of the fine levied u/s 8, 10, 12 or 17 of the Act only and not u/s 9. This distinction was evidently made not without a purpose as no question of any assistance being rendered by the police and prohibition officers in the "detection" of the offence arises in a charge u/s 9. When a man is found in a state of intoxication in a public place, the offence is made out and no question of detection arises at all.

The order for payment of the amount forthwith to the officer is also passed without jurisdiction. Section 61A only enables the Magistrate who tries the case to make a direction that any portion not exceeding one-half of the fine which may be levied be paid to the police and prohibition officers who may have assisted in the detection of the offence and he is bound to send the amount to be paid to the District Collector who is authority to distribute it among such of the officers aforesaid as may be chosen by him and in such proportion as he thinks fit. The jurisdiction to chose the recipients and fix the proportion in which the money is to be distributed rests with the District Collector and not the Magistrate who tries the case and the Sub-Magistrate was actually usurping that function and clutching at jurisdiction as it were when he straight away ordered the payment of the amount to the Sub-Inspector. I may as well say that even if it was a case in which the Magistrate could have passed an order u/s 61A, it is clearly not one justifying the payment of the maximum amount of Rs. 250/- to the police officer who admittedly did nothing more than charging the case against a person who was found by him on the public road in a drunken state and behaving riotously. One is at a loss to see any semblance of "detective work" behind it. The purpose of the legislature in making such a provision was to encourage officers who really exhibit some skill in the detection of the prohibition offences specified therein and bringing the offenders to book. The Magistrate in his explanation observes that "the award of the amount to the Sub-Inspector was not only for the work done by him but was also intended as an incentive for his enthusiasm to do such work in future." If the Magistrate did feel so the proper thing for him to do was to compliment the officer in the judgment and not to make a lavish gift of a substantial amount of Rs. 250/- without jurisdiction. The order passed by the Magistrate is set aside and it is hereby directed that the entire amount collected as fine will go into the Government coffers.