Important Points:
" There is nothing to identify the sample collected from the possession of the accused. It is not known from which plastic can, the four samples relating to the chemical report were collected-On all material aspects, the whole prosecution case is doubtful, and there is no clear and satisfactory material to prove the offence alleged.
" The original inventory, which contains the signature of the Circle Inspector of Police, and also the Assistant Excise Commissioner, omitted to be proved in evidence, was perused by me, and this inventory shows that all the 18 cans produced before the authorised officer had full quantity of spirit. If so, it is not known what happened to the spirit contained in 15 plastic cans. When the inventory prepared by the Assistant Commissioner of Excise shows that there was full quantity of spirit in all the 18 plastic cans, the report of the Magistrate, who verified the inventory shows otherwise that there was some liquid in three of the cans, and the other 15 were found empty. This is an area, where the whole prosecution case is doubtful and unacceptable.

The appellant herein is the 1st accused in S.C. 258/2010 of the Court of Session, Palakkad. The accused Nos.2 and 3 obtained discharge from the trial court. The 1st accused faced trial before the learned Additional Sessions Judge (Adhoc)-III, Palakkad under S.55(a) of the Kerala Abkari Act (for short “the Act”) on the allegation that at about 1 p.m. on 26.1.2007, he was found transporting huge quantity of spirit contained in 18 plastic cans of 35 litres capacity in his Car No.KL-9G-910. The offence was detected by the Sub Inspector of Police, Kozhinjampara. He arrested the accused on the spot and seized the contraband articles including the car as per a mahazar. On the basis of the arrest and seizure, the Sub Inspector registered the crime, and investigation was taken over by the Circle Inspector. After investigation, the Circle Inspector submitted final report in court.

2. The accused appeared before the learned trial Judge and pleaded not guilty to the charge framed against him under S.55(a) of the Act. The prosecution examined six witnesses and proved Exts.P1 to P9 documents in the trial court. The MO1 to MO18 properties were also identified during trial. Those are said to be the 18 plastic cans allegedly containing spirit, seized from the possession of the accused. When examined under S.313 Cr.P.C., the accused denied the incriminating circumstances. The accused did not adduce any evidence in defence.

3. On an appreciation of the evidence, the trial court found the accused guilty. The Police charge, and also the court charge is under S.55(a) of the Act, on the allegation of the illicit transportation of spirit. The finding of the trial court at the operative portion of the judgment is that the accused was found transporting arrack. Anyway, the conviction is under S.55(a) of the Act. This is the irresponsible and the casual way in which the case was dealt with. On conviction, the accused was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- by judgment dated 11.7.2013. Aggrieved by the judgment of conviction, the accused has come up in appeal.

4. On hearing both sides, and on a perusal of the materials, I find some serious infirmities and irregularities in this case, vitiating the whole prosecution case. In the above circumstances, I feel it not necessary to go to the factual aspects of the detection. Of course, the Sub Inspector and the material witnesses have given evidence proving the arrest of the accused, and the seizure of 18 plastic cans. The crucial question is whether the liquid therein is identified as spirit, as the prosecution would allege.

5. It appears that the contraband articles were produced by the detecting officer before the Assistant Excise Commissioner, as the authorised officer appointed under S.67B of the Act. Ext.P9 is said to be the inventory report. This is not in fact the inventory prepared by the authorised officer as prescribed under S.53A of the Act. This is only a copy of the report of the learned Magistrate, who verified the things in the presence of the Assistant Excise Commissioner. The law under S.53A of the Act is that the authorised officer shall prepare an inventory of the articles, and get it certified as correct by the Magistrate having jurisdiction. If the properties are produced before the authorised officer, it will have to be disposed of, or dealt with by him according to law, as provided under S.67B of the Act. As the authorised officer, he can pass appropriate orders including confiscation under S.67B of the Act. Once a property is produced before him for the procedure under S.67B of the Act, there is no question of the property being again produced in court. The properties seized in this case are 18 plastic cans allegedly containing spirit. All the 18 cans are seen produced in court in this case. It is not known how the cans happened to be produced in court, if the cans were actually produced before the authorised officer for ne