Important points:
The Magistrate's role is solely confined to holding of pre-trial procedures and to try the case. It is the bounden duty of the detecting officer to arrest the accused, seize the contraband and to draw sample of the liquor for the purpose of forwarding for chemical analysis. The Court will seize the case only when a final report is laid before it after concluding the entire investigation procedure. Drawing of sample and analysis of it by Chemical Examiner's laboratory, being part of the investigation process, and being assigned by the Act to be done by designated officers, the court cannot assume the role. The officers who are empowered under the Act cannot delegate their power to any other officers. Similarly they cannot abstain from exercising any of the powers conferred on them by the Act and leave it to be done by the court.

JUDGMENT :

1. This appeal is directed against judgment dated 04.04.2005 of Additional Sessions Judge for trial of Abkari Act cases, Neyyattinkara in S.C No.529/2000. The appellant is the accused in the case on hand. She was tried for an offence punishable under Section 55(1) and 8(1) of the Abkari Act (for short, 'the Act'). She was found guilty, convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,00,000/-and in default to undergo simple imprisonment for 2 months. Aggrieved by the judgment as aforesaid, the accused has approached this court in the appeal on hand. The case of the prosecution in brief are as follows;

On 29.04.1998, the Preventive Officer of Thirupuram Range while conducting patrol duty in Kanjiramkulam Village, found a woman walking by the side of the road carrying a plastic Can. Though she attempted to flee from the spot, the Excise officials caught her. The plastic Can with her was examined. It was found to contain alcohol and was seized in the presence of witnesses. The accused was arrested and a seizure mahazar was prepared from the spot. Thereafter, the liquor alongwith the arrested accused were produced before Judicial First Class Magistrate Court-III, Neyyattinkara. A crime and occurrence report was prepared by the Excise Inspector of Thirupuram range and that was also forwarded to the Court along with the seizure mahazar. Thereafter, investigation was conducted and on conclusion of it, a final report was laid before the above Court. Since the offence alleged was triable exclusively by a Court of Sessions, the same was committed to the Court of Sessions, Thiruvananthapuram. Therefrom, the case was made over to Assistant Sessions Court, Neyyattinkara for trial and disposal.

2. The accused entered appearance on summons being served on her. After a preliminary hearing, charge was framed for the offences for which she was chargesheeted. The charge was read over to her and explained. She pleaded not guilty and claimed to be tried. Trial was held and PWs 1 to 5 were examined and MO1 and Exts.P1 to P4 were marked on the side of the prosecution. On closure of the evidence of the prosecution, the accused was questioned under Section 313(1)(b) Cr.P.C with reference to the incriminating evidence brought on record by the prosecution. The accused denied all questions put to her and pleaded innocence. Grounds having not been made out to record an order of acquittal, the accused was called upon to enter on her defence. On the side of the accused, a witness was examined as DW1. On appreciation and evaluation of the evidence, the trial court found the accused guilty and convicted and sentenced her by the judgment under challenge.

3. Section 4 of the Abkari Act (for short 'the Act') confers power on the Government to issue Notification in the official Gazette to appoint officers to take necessary actions under Sections 40 to 53 of the Act. Section 40 of the Act speaks about procedure to be complied with by an officer arresting a person and seizing articles. Sub-section (3) of Section 40 provides that every person arrested under Section 31 or Section 34 or Section 35 of the Act shall be produced before, and article seized under Section 31 or Section 34 shall be forwarded to the officer in charge of the nearest Police Station or to an officer empowered under Section 5A, or to an Abkari Inspector. Sub-section (5) provides that the authority or officer to whom any article is forwarded under Sub-section (3) shall with all convenient despatch take necessary steps in accordance with law for disposal of such article. Sections 42 to 49 of the Act speak about the investigation to be conducted by an Abkari Officer empowered by the Notification issued by Government under Section 4 of the Act and the applicability of the law for the time being in force in Criminal Courts for summoning witnesses for questioning and recording of statements as part of the investigation process. Section 50 provides tha