The central legal point established in the judgment is the requirement for substantive evidence to prove the alleged offence, prompt production of samples, and the jurisdiction of investigating officers as per the Abkari Act and relevant government notifications.

Appeal by the accused. He was convicted under Sec.55 (a) of the Abkari Act. He was sentenced to rigorous imprisonment for one year and a fine of Rs.1,00,000/-. He shall undergo rigorous imprisonment for one month if fine is defaulted.

2. The prosecution case is this: The accused possessed 2½ liters of arrack. He carried arrack in a bottle of 1½ liters capacity and in another bottle of the capacity of one liter. The Sub Inspector of Payangadi police station detected the offence. He was on patrol duty at that time. He found the accused holding a bag. The bag contained the bottles containing arrack. The detection of the offence was at 3.30 p.m. on 26.4.1999.

3. PWs 1 to 6 were examined on prosecution side. Exts P1 to P5 and MOs 1 to 3 were marked. Ext D1 was marked on the defence side.

4. Heard the learned counsel for the appellant/accused. Heard the learned Public Prosecutor too.

5. Possession of 2½ liters of arrack is the charge against the accused. PW1 detected the offence. His police team on patrol duty consisted of PW5, a police constable. PWs 1 and 5 spoke to the incident. PWs 2 to 4 are independent witnesses. They did not support the prosecution. PW6 conducted the investigation. PW1 filed the charge-sheet.

6. If the prosecution version is true, the accused should have been charged under Sec.8 of the Akari Act.

7. The evidence of PWs 1 and 5 go as under: They were on law and order patrol duty on 26.4.1999. They reached the place of occurrence at 3.30 p.m. They saw the accused there. He carried a bag. He got perplexed. This caused suspicion. The police team went near him. PW1 inspected the bag. It contained a 1½ liters bottle and a one liter bottle. PW1 arrested the accused. 180 ml of arrack from each bottle was taken as samples. The sample bottles were sealed. Labelled. PW1, the accused and the independent witnesses signed on the labels. The bottles and the bag were seized. Mos 1 and 2 are the bottles. MO3 is the bag. Ext P1 seizure mahazar was prepared by PW1.

8. The learned Additional Sessions Judge accepted the evidence of PWs 1 and 5. Their evidence appeared to be reliable to the learned Judge. But reliability of evidence is not equal to sufficiency. The evidence of PWs 1 and 5 proves arrest and seizure. Two bottles were seized from the accused. One sample from each bottle was taken. Each sample measured 180 ml. Taking 180 ml as samples from each bottle suggests that the bottles contained a liquid. The accused was arrested and MOs 1 to 3 were seized on the premise that the liquid was arrack. But the evidence does not show how did PW1 know that the liquid was arrack. Ext P1 seizure mahazar recites that the liquid was smelled and tasted by PW1 to ascertain it to be arrack. But what is written in the seizure mahazar is not substantive evidence. PW1 did not depose that the liquid was smelt or tasted to confirm it to be arrack. The evidence of PW 5 is also silent on this aspect. The Public Prosecutors cannot afford to miss to elicit such vital evidence when witnesses are in the box. The evidence of PWs 1 and 5 may not be unreliable. But it is quite insufficient.

9. True, Ext P5 chemical examination report is there. It certifies that ethyl alcohol was detected in both the samples. The percent by volume of ethyl alcohol was 22.67 in sample I and 29.74 in sample II. I shall state later how far Ext P5 is useful to the prosecution.

10. The learned counsel for the accused urged two points vehemently. First, unexplained long delay in producing the material objects and samples before the Magistrate. The second, incompetence of PW6 to investigate the case. I shall consider those points.

11. The arrest and seizure were on 26.4.1999. The material objects and samples were produced before the Court of the Magistrate only on 6.5.1999. PW1 spoke so. I have ascertained from the list of property that the properties were produced before the Magistrate on 6.5.1999. The date of production of the properties shown in the impugned judgment as 5.6.