Point of Law: Specimen seal is provided in forwarding note so as to enable chemical examiner to compare it with seal on sample and come to conclusion that it reached laboratory without any tampering.

ORDER :

The revision petitioners herein are the accused in C.C. No. 243 of 1997 on the file of the Judicial Ist Class Magistrate, Thaliparamba, alleging commission of offences punishable under Rule 6 of the Kerala Rectified Spirit Rules r/w Section 55(a) of the Kerala Abkari Act.

2. The prosecution allegation in short is that, on 12.08.1996 the revision petitioners/accused stored rectified spirit in 20 plastic barrels and 4 plastic cans in the house bearing No. AP II 557(A) of Maniyur amsom Poovan desom and thereby committed the alleged offences.

3. The prosecution in support of their case examined PWs 1 to 10 and Exts. P1 to P7 were marked. The trial Court found the accused guilty and convicted them to undergo simple imprisonment for a period of two years and to pay a fine of Rs.25,000/-each and in default of payment of the fine, to undergo simple imprisonment for a further period of six months.

4. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.81 of 2003 before the Sessions Court, Thalassery, which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld.

5. The learned counsel for the revision petitioners raised various contentions assailing the order of conviction and sentence imposed by the Court below. Ext.P1 is the search list in which the details of the seized alleged contraband and sample is mentioned and a perusal of the same would reveal that though the occurrence was on 12.08.1996, the same was produced before the court only on 14.08.1996 and there is a delay of two days, which is not explained. It is further contended that in Ext.P1, no specimen seal is seen affixed. It is also contended that the forwarding note is not seen marked in the trial. It is also deposed that though the detection was done by the Circle Inspector of Police and charge was laid by the Sub-Inspector of Police, the investigation was done by an Assistant Sub-Inspector of Police, who gave evidence as PW10. It is also admitted that the Assistant Sub-Inspector of Police attached to Thalipparambu Police Station took over the investigation and on 13.08.1996 he prepared the scene mahazar and he questioned the witnesses and recorded their statement. It is seen that the investigation is done by the Assistant Sub-Inspector of Police. The revision petitioners relying on S.R.O.No. 321/1996, submitted that the Assistant Sub Inspector of Police is incompetent to conduct investigation of the case. In support of the contention, the revision petitioners rely on the judgment in Crl. Appeal No. 1077/2005 dated 21.08.2015 and also the judgment of the Apex Court in Sabu v. State of Kerala [2007 (4) KLT 169].

6. Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not preclude this court from examining whether there is strict compliance with the statutory formalities mandated as per the Abkari Act. This court in Baburaj v. State of Kerala [2021 (6) KLT 416], has held that given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the statutory formalities specified in the Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section 114 (e) of the Evidence Act has no application if official acts are not shown to be performed properly, as held in Sathi v. State of Kerala [2007 (1) KLT SN 57]. In this backdrop, it is to be considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt.

7. Admittedly, properties were seized and sample was drawn as evident from Ext P1 search list and a perusal of the same would reveal that though the occurrence was on 12.08.1996, the same was produced before the court only on 14.08.1996 and there is a delay of two days, which is not explained. This court in Ramachandran v. State of Kerala [2021 (1) KLT 793] has held that une