The central legal point established in the judgment is the requirement to prove possession and control over contraband, emphasizing genuine seizure procedures and the necessity to establish dominion or control for conviction under Section 55(a) of the Kerala Abkari Act.

JUDGMENT :

Johnson John, J.

The appellant, who is the accused in S.C No.254 of 2002 on the file of the Additional Sessions Judge (Abkari Cases), Kottarakkara is challenging the conviction and sentence imposed on him for the offence punishable under Section 55(a) of the Kerala Abkari Act (for short 'the Act').

2. As per the impugned judgment dated 03-04-2007, the appellant was convicted and sentenced to undergo Rigorous Imprisonment for two years and to pay a fine of Rs.1,00,000/-and in default of payment of fine to undergo Rigorous Imprisonment for three months for the offence under Section 55(a) of the Act.

3. The prosecution case is that on 28-10-2000 at 2.30 p.m., the accused was found keeping 4 litres of arrack in a 10 litre can on a slab on the southern courtyard of Shaji Mandiram House, near Vencose Junction in Veliyam Village. The offence was detected by the Assistant Sub Inspector of Pooyappally Police Station and party.

4. The trial court, after framing charge, examined PWs'1 to 5 and marked Exts.P1 to P5 and MOs' 1 and 2 from the side of the prosecution and no evidence was adduced from the side of the defence.

5. After trial and after hearing both sides, the learned Additional Sessions Judge found the accused guilty of the offence punishable under Section 55(a) of the Act and imposed the sentence as aforesaid.

6. Heard Adv.Sruthy N.Bhat, the learned counsel for the appellant and Smt.Nima Jacob, the learned Public Prosecutor.

7. The learned counsel for the appellant argued that the offence was detected by an Assistant Sub Inspector of Police, who is not an authorized officer to detect and investigate an offence under the Act. It is also argued that the detecting officer has not affixed the specimen impression of the seal used in the contemporaneous mahazar and the specimen impression of the seal is also not seen affixed in Ext.P3 property list. Further, the prosecution has also not marked a copy of the forwarding note and there is no material before the court to show when and how the sample was forwarded to the Chemical Laboratory. It is also argued that there is no evidence to prove that the accused was in possession or control over the alleged contraband items recovered in this case and in the absence of evidence to prove the dominion or control of the accused over the contraband items seized, he is entitled for the benefit of reasonable doubt.

8. PWs1 and 2 are the independent witnesses examined from the side of the prosecution and they turned hostile to the prosecution and deposed that they have not witnessed the occurrence.

9. PW3 was the then Assistant Sub Inspector of Pooyappally Police Station, who detected the offence at about 2.30 p.m. on 28-10-2000. According to PW3, the accused was standing in the southern courtyard of his house and on seeing the police party, he attempted to run away. But he was detained. PW3, further deposed that from a slab, a 10 litre black can containing 4 litres of arrack was recovered by preparing Ext.P1 mahazar. According to PW3, he has also taken samples in two bottles of 375 ml capacity and sealed the sample bottles and the can containing the remaining arrack.

10. The learned counsel for the appellant cited decisions of this Court in Subash v. State of Kerala (2008(2) KLT 1047) and Mari Dhorai v. State of Kerala (2018(4) KLT 1204) to show that an Assistant Sub Inspector is not an authorized officer to detect and investigate an Abkari offence and that as per the notification, SRO No.321 of 1996 of the Government of Kerala, the Officers of and above the rank of Sub-Inspector of Police are Abkari Officers for the purpose of the Act and in this case admittedly PW3, who detected the crime was only an Assistant Sub Inspector of Police, who is subordinate to the Sub Inspector of Police and therefore, he is not authorized nor empowered to detect or investigate the Abkari offence.

11. A perusal of Ext.P1 mahazar and Ext.P3 property list clearly shows that the detecting officer has not affixed the spe