Unauthorized detection and investigation under the Abkari Act rendered the evidence inadmissible and entitled the accused to the benefit of doubt.

S.S. Satheesachandran, J.

1. The revision is filed against the concurrent verdict of guilty rendered against the accused for the offence punishable under Section 55(a) of the Kerala Abkari Act, hereinafter referred to as the 'Act'. Negativing his plea of not guilty, the learned Assistant Sessions Judge, after trial, convicted him of the offence and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1lakh with default term of simple imprisonment for three months. In appeal, the learned Sessions Judge upheld the conviction and confirmed the sentence without any modification. Aggrieved by the conviction and sentence, questioning its legality, propriety and correctness, the accused has preferred this revision.

2.. The gist of the prosecution case is that, on the evening of 31/10/1998, while conducting patrol duty, PW 1, Assistant Sub Inspector of police, Haripad Police station, got reliable information that the accused was engaged in the sale of illicit arrack in his house, situate in Ward No. VII in Karuvatta Village. PW 1, with a-police party rushed to the spot, and reaching that place, found the accused carrying a jerry can close to the southern courtyard of his house. Seeing the police party, the accused got perplexed and attempted to make himself scarce. He was intercepted and the jerry can found in his possession was examined, which contained five litres of illicit arrack. Sample was collected and sealed at the spot; and the sample and residue were seized preparing Ext. P1 scene mahazar. The accused arrested was later enlarged on bail. The investigation of the crime was conducted by PW 4, the Sub Inspector of Police, Harippad Police Station, and, later, PW 5, the Sub Inspector of the nearby Police Station, who, then, held charge of Harippad Police Station laid the charge against the accused indicting him of the offence punishable under Section 55(a) of the Act.

3. The accused pleaded not guilty when the charges were made known. Prosecution examined PWs 1 to 5, got marked Exts. P1 to P5 and identified MO 1 to prove his case. The accused, when questioned under Section 313 of the CrPC, reiterating his plea of innocence, canvassed a defence that the jerry can was collected by the police from a nearby pond and he was falsely implicated in the crime. He examined one witness, DW 1 to substantiate his defence. The learned Magistrate, after appreciating the materials tendered in the case, found the accused guilty of the offence charged and he was thereupon convicted and sentenced as indicated above. His conviction and sentence, as already stated, was confirmed in appeal by the Sessions Judge.

4. Before me, the learned counsel for the revision petitioner/accused assailed the concurrent finding of guilt passed against the accused as illegal and unsustainable contending that the prosecution of the accused for the offence under Section 55(a) of the Act, had proceeded on the basis of detection of the crime by an unauthorised person, an Assistant Sub Inspector of Police, who had no sanction to detect or investigate a crime under the Abkari Act. Inviting my attention to SRO No. 321/1996, the learned counsel contended that only police officers of and above the rank of S.I. of police in charge of law and order and working in the General Executive Branch of the Police Department apart from the Revenue Officers mentioned in the notification, are competent to conduct detection and investigation of the Abkari offences. The decision rendered by this Court in Sabu v. State of Kerala, 2007 (4) KLT169wasreliedbythecounsel to substantiate his challenge that PW 1, Assistant Sub Inspector of Police, had no authority to detect or to seize the contraband involved in an Abkari offence. The learned counsel also urged that there is no acceptable legal evidence to prove the indictment levelled against the accused other than the interested testimony of PWs 1 and 2, the Police Officers involved in the detection of the crime