IMPORTANT POINTS
• A perusal of the forwarding note, it is clear that there is no seal affixed in the forwarding note. There is a purpose in affixing the seal in the forwarding note. If the specimen seal is not affixed in the forwarding note, the prosecution cannot succeed because the links starting from the seizure till it reaches in the hands of the Analyst could not be proved without there is seal in the forwarding note-
• The Circle Inspector had no jurisdiction to confer jurisdiction on PW6 to conduct the investigation. The Government of Kerala alone can appoint an Abkari Officer. The Circle Inspector himself should have conducted the investigation. The question is not whether any prejudice was caused to the accused. The question is one touching the jurisdiction. The accused is entitled to get acquittal on this ground also.

JUDGMENT :

The above appeal is filed by the first accused in Sessions Case No.339 of 2002 on the file of the Principal Assistant Sessions Judge, North Paravur. The Circle Inspector of Excise, Aluva, has filed a charge sheet against the appellant herein and another alleging offences punishable under Sections 55(a) and 58 of the Abkari Act. The second accused was absconding, and hence, the trial court proceeded with the case of the first accused.

2. The prosecution case is that the accused were found in possession of illicit liquor (Indian made foreign liquor) and were transporting the same in a tanker lorry bearing registration No. KL-7Q/3096 through the National Highway-17 in contravention of the Abkari Act and Rules. It is alleged that they were transporting 144 cases of Mc Dowell Brandy, 38 cases of Honey Bee Brandy, 82 cases of Golconda Brandy, and 39 cases of Christian Brothers Brandy in the lorry without any valid license or papers. It was kept in three compartments of the tanker lorry. It was detected by the Excise Inspector, Aluva Range, and the place of seizure was in front of the Government Hospital, Moothakunnam, at 11.30 a.m. on 23.11.1998.

3. To substantiate the case, the prosecution examined PW1 to PW5. Exts.P1 to P8 are the exhibits marked on the side of the prosecution. MO1 to MO12 are the material objects. Ext.D1 is marked on the side of the defence.

4. Ongoing through the evidence and documents, the trial court found that the accused committed the offence under Sections 55(a) and 58 of the Abkari Act. They are sentenced to undergo rigorous imprisonment for ten years each and to pay a fine of Rs.1,00,000/-each under Sections 55(a) and 58 of the Abkari Act. In default of payment of fine, the accused are directed to undergo simple imprisonment for one year each. The sentences are ordered to run concurrently. Aggrieved by the conviction and sentence, this appeal is filed by the first accused.

5. The point for consideration in this appeal is whether the offences under Sections 55(a) and 58 of the Abkari Act are made out against the appellant.

6. Altogether five witnesses were examined on the side of the prosecution. PW1 is the Detecting Officer. He is the Excise Inspector of Aluva Range. The alleged seizure of the contraband article is at Moothakunnam, which is admittedly within the jurisdiction of Paravur Excise Range. PW1 detected the offence. He arrested the accused and seized the contraband articles. He prepared Ext.P1 mahazar from the spot. Ext.P2 is the arrest memo of the first accused. He produced the accused and the thondi materials along with the vehicle before the Paravur Range office because the alleged seizure happened within Paravur Excise Range jurisdiction. PW2 and PW3 are independent witnesses examined in this case. They turned hostile to the prosecution. But, they admitted their signatures in Ext.P1 seizure mahazar. PW4 is the Excise Inspector of Aluva Excise Range. He deposed that the case was registered by charge witness No.11, the Excise Inspector of Paravur Excise Range. Charge witness, No.11 was not available for examination. Hence, Ext.P3 occurrence report prepared by charge witness No.11 was marked through PW4, the Excise Inspector, Aluva Range. Thondi list, in this case, was prepared by charge witness No.11. Ext.P4 is the thondi list. The same was also marked through PW4 because charge witness No.11 was not available for examination in court. Charge witness No.11 was on long leave during that period, and he was abroad. Charge witness No.11 prepared Ext.P5 forwarding note. That was also marked through PW4. Ext.P6 is the chemical analysis report, and the same was also marked through PW4, the Excise Inspector, Aluva Excise Range. PW4 admitted that the thondi articles were produced before the court as per Ext.P4 on 2.12.1998. According to PW4, he conducted part of the investigation. He took charg