1. The sole accused in S.C.No.404/00 of the court of Additional Sessions Judge, Fast Track (Ad hoc)-II, Thiruvananthapuram, has preferred this appeal challenging the judgment dated 14.10.2003 in the above sessions case, since by the above judgment, the trial court has convicted and sentenced the appellant for the offence under section 55(a) of the Abkari Act.

2. The prosecution case is that on 8.7.1999 at about 6.40 a.m., the accused was found in possession of 8 ltrs. Of arrack in a 10 ltr. black plastic can and about one ltr. Of arrack in a 1.5 ltr. plastic bottle for sale. When the accused faced the trial in S.C.No.404/00, a formal charge was framed against him for the offence punishable under section 55(i) of the Act, which denied by the accused when the said charge read over and explained to him. So, the trial was proceeded further, during which, PWs.1 to 6 were examined and Exts.P1 to P3 were marked and M.Os.1 to 3 were identified. Finally, the learned Judge has found the case in favour of the prosecution and held that the accused has committed the offence under section 55(i) of the Abkari Act and accordingly he is sentenced to undergo rigorous imprisonment for 3= years and to pay a fine of Rs.1 lakh for the offence under section 55(i) of the Abkari Act and in default, he is directed to undergo rigorous imprisonment for a further period of one year. Set off is allowed. It is the above finding and order of conviction and sentence that are challenged in this appeal.

3. Heard Adv.Sri.Suman Chakravarthy, the learned counsel for the appellant and Adv.Smt.T.Y.Laliza, the learned Public Prosecutor for the State.

4. During the trial of the case, PWs.2 and 5 are examined mainly to substantiate the prosecution allegation about the seizure of the contraband article from the possession of the accused and the detection of the crime. PW2 is the then Police Constable and PW5 is the then Assistant Sub Inspector of Poonthura Police Station. According to them, on 8.7.1999, they proceeded in a police jeep along with two other Police Constable to Edayar and on reaching there, PW5 informed the police party that they are going to nab the accused who is reportedly engaged in the business of selling illicit arrack and when they walked towards south and reached the coconut grove belonged to one Sadanandan, they saw the accused pouring the arrack from M.O.1 plastic can into M.O.2 plastic bottle and on seeing the police party, the accused ran away and though the police party chased him, their attempt fails as the accused jumped into the nearby river and escaped towards the seashore. When PWs.2 and 5 examined, they identified M.Os.1 and 2, and M.O.3 glass tumbler found near the place of occurrence. They have also stated about the preparation of the mahazar for the seizure of the material objects. Ext.P2 is the mahazar. The further investigation was undertaken by PW6, the then Sub Inspector of Poonthura Police Station, who finally laid the charge. PW1, the chemical examiner, was also examined in this case and he identified Ext.P1 certificate. These are the evidence and materials on record, that are relied on by the learned Judge of the trial court in support of his finding.

5. The learned counsel for the appellant, among several other contentions, it is pointed out that in the present case, the seizure was affected by PW5, who was then working as Assistant Sub Inspector, and he was not empowered or authorized for the seizure and therefore the trial court is wrong in convicting the appellant. According to me, the above submission of the learned counsel is supported by the decision of this Court in Sabu Vs. State of Kerala (2007(4) KLT 169). In the above decision, it is held that, "As per S.4 of the Abkari Act, the Government of Kerala is empowered to authorize an Officer of the State to detect or investigate an offence contemplated under the provisions of the Abkari Act. The Government of Kerala had notified that all police officers above the ra