P.D. Rajan, J.

The main challenge in this case is whether a part of the investigation has been conducted by a Sub Inspector outside his territorial jurisdiction and whether that investigation report can be used for a conviction?

2. This appeal is filed by the accused against the judgment of conviction in S.C.No.319/2003 by the Additional Sessions Judge (Adhoc)-I, Kalpetta for offence punishable under Section 55(a) of the Abkari Act (hereinafter referred to as the Act). The charge against the accused is that on 3.8.2001 the Sub Inspector of Police, Sulthanbathery conducted a joint raid with forest officers in the house No.VI/342 of Mykkara Paniya Colony, Muthanga and seized 5 litres of arrack from there. The accused was arrested and the contraband articles were taken into custody, reaching at the Police Station, he registered a crime. After completing investigation, the Sub Inspector of Police, Sulthanbathery laid charge before Judicial First Class Magistrate Court-I, Sulthanbathery, from there the case was committed to Sessions Court, Kalpetta.

3. In order to substantiate the case, prosecution examined six witnesses and marked Exts.P1 to P7 as documentary evidence. MO1 and MO2 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him, he did not adduce any defence evidence. The learned Additional Sessions Judge (Adhoc-I) convicted the accused under section 55(a) of the Act and sentenced to rigorous imprisonment for one year and fine of 1 lakh, in default ? of payment of fine rigorous imprisonment for three months. Being aggrieved by that, he preferred this appeal.

4. The first contention advanced by Smt. Reshmi K.V., the learned counsel appearing for the appellant was that while conducting search inside the house without a search warrant, independent witnesses were not obtained by the searching officer. The seized articles were entrusted to S.H.O., Sulthanbathery, but he was not examined as a witness and no documents were produced to show that the articles were entrusted to SHO, Sulthanbathery. There is delay of 14 days in sending the seized article to the Court.

5. In reply, Sri. N. Suresh the learned Public Prosecutor submitted that non obtaining of search warrant will not affect the credibility of the seized article, but the searching officer had properly considered the general principle regarding the search under the Act.

6. The general rule is that a house can be searched only after obtaining a warrant, which must be obtained from a Magistrate under Section 30 of the Act, a search warrant may be obtained from a Magistrate or Commissioner of Excise upon information and after enquiry of the informant on oath. But Section 31 says whenever the Commissioner of Excise or Abkari Officer not below the rank notified by the Government or any police officer not below the rank of Sub Inspector has reason to believe that any delay in obtaining a search warrant may cause concealment or destruction of evidence or facility for the escape of the offender, then the officer may search without warrant after recording the reason. Officers of and above the rank of Preventive Officers are competent to conduct searches without warrant under the Act. All Police Officers of and above the rank of Sub Inspector of Police working in the general executive branch of the Police Department under the respective jurisdiction are competent to conduct search as per SRO No.321/96, a notification issued under Section 4 of the Act.

7. According to Kerala Abkari Manual Volume II, Chapter XXV deals with crime, detection, enquiry, trial and prosecution, Rules 11, 14, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27, 28, 31, 32 and 35 deal with mode of conducting searches. In urgent situation any Abkari Officer notified by the Government may not be possible to obtain warrant from a Magistrate or Excise Commissioner, in this context, Rule 14 says he may, after recording the reason and ground