Point of Law: Akbari Act - Non-compliance of mandatory requirements to be complied with at the time of arrest is fatal to the prosecution as the seizure of the contraband has no existence without proving the factum of the arrest.

JUDGMENT :

Aggrieved by the judgment dated 25.07.2007 passed by the learned Additional Sessions Judge for Trial of Abkari Act Cases, Neyyattinkara in S.C.No.1850 of 2001, the accused has preferred this appeal.

2. The accused has been convicted of the offence under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.1,00,000/- by the impugned judgment.

3. On 25.07.1999, at about 06.00 p.m., the Sub Inspector of Police, Parassala Police Station (PW5), found the accused carrying a 5-liter jerry-can at Parasuvaikkam. PW5 inspected the can in possession of the accused and ascertained that it contained 4 litres of illicit arrack. The accused was also holding a glass tumbler. PW5 seized the contraband substance from the possession of the accused and arrested him. PW5 registered FIR.No.174 of 1999 of Parassala Police Station against the accused, alleging offence punishable under Section 58 of the Abkari Act. After completion of the investigation, the final report was submitted before the Judicial First Class Magistrate Court-II, Neyyattinkara.

4. The case was committed to the Sessions Court, Thiruvananthapuram, from where it was made over to the trial court. On the appearance of the accused, charge was framed against him for the offence punishable under Section 58 of the Abkari Act. The accused pleaded not guilty, and therefore, he came to be tried by the trial court.

5. The prosecution examined PWs.1 to 6 and proved Exts.P1 to P9 and MO1.

6. The trial court found that the accused is guilty of the offence alleged and passed the impugned judgment of conviction and sentence.

7. Heard Shri M. Sreekumar, the learned counsel for the accused, and Shri M.C. Ashi, the learned Public Prosecutor.

8. The learned counsel for the accused contended that the prosecution failed to establish the link connecting the accused with the contraband allegedly seized from the place of occurrence. The learned counsel challenges the legality of the procedure in which the sample was drawn from the contraband substance by the property clerk as per the directions of the learned Magistrate.

9. The learned Public Prosecutor contended that strict compliance of the provisions of the Abkari Act and the formalities to be followed in sampling need not be insisted, but only substantial compliance is sufficient.

10. This Court requested the learned Senior Counsel Shri. P. Vijayabhanu to address arguments on the questions of law involved. The learned Senior Counsel submitted that as the punishment for offences under the Abkari Act is draconian, it follows as a logical corollary that strict compliance to the statutory formalities specified in the Act is necessary. The learned Senior Counsel further submitted that the Magistrate undertaking the act of taking sample with the assistance of the property clerk could not be comprehended at all.

11. The issue that falls for consideration is whether the learned Magistrate is empowered to draw sample from the contraband produced before him by the detecting officer.

12. I shall first consider whether strict compliance with the statutory formalities stipulated under the Abkari Act is mandatory for a successful prosecution.

13. Substantial amendments were incorporated in the Abkari Act in 1997 by way of Act 16 of 1997.

14. The statement of objects and reasons for enacting Act 16 of 1997 is relevant and states as follows:

“The Government in their Abkari Policy for the year 1997-98 have decided to make offences relating to manufacture, export, import, transport, transit, possession, storage, distribution, bottling or selling liquor in any form, without permit or licence, cognizable, non-bailable and non-compoundable and also to enhance the punishment for offences under the Abkari Act. In order to give effect to the above proposal, amendments to the various provisions of the Abkari Act were necessary.”

15. This statement identifies the inadequacy of the then-existing provisions insofa