The lack of evidence connecting the accused to the seized contraband, delay in investigation, and anomalies in the prosecution case were fatal to the conviction under the Abkari Act.

ORDER :

This revision is at the instance of the 2nd accused in SC No.55 of 2008 on the file of Assistant Sessions Judge (Principal), Palakkad, assailing the judgment in Crl.Appeal No.500 of 2011 on the file of III Additional District and Sessions Judge, Palakkad, which upheld his conviction and sentence under Section 8(2) of the Abkari Act.

2. The prosecution case is that, on 10.09.2005 at about 6 a.m, PW1-Circle Inspector of Excise, Palakkad Excise Enforcement & Anti Narcotic Special Squad, while conducting patrol duty along with other officials in the Squad, got reliable information that arrack has been stored by the 1st accused in House No.V/342 of Peringottukurissi Panchayath. After sending search memo to court, PW1 and party conducted search in that house and found out a 5 litre can full of illicit arrack. That house belonged to the revision petitioner (A2). The 1st accused, who is the wife of the revision petitioner (A2), was present in that house at the time of search and seizure, and she was arrested at the spot. After completing the legal formalities like sampling, labelling etc., the 1st accused along with the contraband were produced before the Excise Office, Kuzhalmannam, where crime was registered against both the accused by PW5, Assistant Excise Inspector, who was in charge of the Excise Inspector. CW9, Circle Inspector of Excise, Alathur investigated the case and laid charge against both the accused under Sections 8(1) and 8(2) of the Abkari Act.

3. On appearance of the accused before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, to which both of them pleaded not guilty. Thereupon, prosecution examined PWs 1 to 6, marked Exts.P1 to P9 documents and identified M.O.1, to prove its case.

4. On closure of the prosecution evidence, the accused were questioned under Section 313 of Cr.P.C. Both of them denied the incriminating circumstances brought on record, but no defence evidence was adduced from their side.

5. On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court found both the accused guilty under Section 8(2) of the Abkari Act, and each of them were convicted and sentenced to undergo simple imprisonment for six months and fine of Rs.1 lakh with a default sentence of simple imprisonment for six months.

6. Aggrieved by the conviction and sentence imposed by the trial court, they filed Crl.Appeal No.500 of 2011, and the appellate court, on re-appreciation of the facts and evidence, found that the prosecution failed to prove the guilt of A1 beyond reasonable doubt and so, she was acquitted. But, the conviction and sentence of the revision petitioner (A2) was upheld and the appeal was dismissed as against him. So, he has preferred this revision petition.

7. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence imposed on the revision petitioner by the courts below, under Section 8(2) of the Abkari Act.

8. Heard learned counsel for the revision petitioner as well as learned Public Prosecutor.

9. The grounds on which the revision petitioner is assailing the impugned judgments are manifold. First of all, he is challenging the competence of PW1 to detect the offence. According to him, PW1 was the Circle Inspector of Excise attached to Excise Enforcement and Anti Narcotic Special Squad, Palakkad, and he had no authority to conduct search and seizure or to arrest the accused.

10. Learned counsel for the revision petitioner relied on the decision Sujith v. State of Kerala [2016 (3) KHC 823 : 2016 (3) KLT 434] to substantiate his argument that, when the officers, who detected the offence, were not authorised officers under Section 4 of the Abkari Act, the detection, investigation etc. conducted by them is non est in law and the accused cannot be convicted on the basis of such illegal detectio