V. Ramkumar, J.

In this appeal filed under Sec.374 (2) Cr.P.C. the appellant, who was the accused in S.C.No.495/2000 on the file of the Addl. Sessions Court (Fast Track-II), Kozhikode for an offence punishable under Section 55(a) of the Abkari Act, challenges the conviction entered and the sentence passed against him for the said offence. He was sentenced to rigorous imprisonment for two years and to pay a fine of `1,00,000/- and on default to pay the fine to suffer simple imprisonment for six months.

2. When this appeal came up for hearing before a learned Single Judge (K.Hema, J.), it was contended that the delay of 16 days in producing the seized properties before the court was fatal in view of Section 102(3) Cr.P.C. The decisions in Dominic v. State of Kerala ( 1989(1) KLT 601), Alex v. State of Kerala (2003(1) KLT SN 9), Kunhikannan v. State of Kerala (2006(4) KLT 469) and Vikraman v. State of Kerala (2007(1)KLT 1010) were relied on. Adverting to the aforesaid decisions the learned Single Judge felt that the view taken in the aforesaid decisions that the property seized should be forthwith produced before the Court was not justified since Section 102(3)Cr.P.C only provides for reporting the seizure forthwith. Likewise, it was contended before the learned Judge that production of the accused person and the seized property before an officer holding charge of the Excise Inspector but lower in rank than that of the Excise Inspector is violative of Section 40(3)(b) of the Abkari Act. The said proposition canvassed before the learned Judge was also taken exception to by the learned Judge. Hence this reference.

3. The questions referred for decision are

1. Is it necessary that article seized under Section 34 of the Act be produced before the Magistrate's Court "forthwith" either by virtue of Section 102 (3) of the Code or any other provision in Abkari Act or Manual?

2. Does production of arrested person and the seized property before an officer, who is in charge of Excise Inspector, at the relevant time violates Section 40(3)(b) of the Act and whether accused can be acquitted on that ground?

4. We heard Advocate Sri.V.V.Surendran, the learned Counsel appearing for the appellant and Advocate Sri.M.S.Breeze, the learned Public Prosecutor who defended the State.

5. In Dominic V. State of Kerala (1989(1) KLT 601) a learned Single Judge of this Court referring to the provisions in the Excise Manual Volume II read with Section 36 of the Abkari Act, took the view that if those provisions are read together it is clear that seizure of property should be reported to the Court "forthwith" and request for sending a sample for analysis to be made expeditiously. Paragraphs 17,26,34,49 and 77 of the Excise Manual were relied on in this connection. The above view was reiterated by another Single Judge of this Court in Alex v. State of Kerala (2003(1) KLT SN 9). In Kunhikannan v. State of Kerala (2006(4) KLT 469) also yet another Judge of this Court held that the delay of 14 days in producing the seized articles before the Court was fatal to the prosecution. In Vikraman v. State of Kerala (2007(1)KLT 1010) which was overruled on another point in Subash v. State of Kerala (2008(2) KLT 1047 DB), it was observed that even though under Section 102(3) Cr.P.C the property seized should be forwarded to the Court "forthwith", the said provision does not contain the consequence of non- compliance and therefore, if proper explanation for the delay is offered, such delay by itself is not fatal to the prosecution.

Section 102(3) Cr.P.C reads as follows:-

"Every police officer acting under sub-section(1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be, conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in the Police custody may no