Applicability of the provisions of the Code.

1. The accused in C.C.No.431 of 1979 was convicted by the Judicial First Class Magistrate, Wadakkancherry for an offence punishable under section 55(g) of the Abkari Act. He was sentenced to simple imprisonment for six months and fine of Rs.1,000/-. In Crl.A.No.97 of 1981 the Sessions Judge, Trichur confirmed the conviction and sentence. The revision petition was filed by her.

2. The allegation against her is that on 10.2.1979 he was found to carry fourteen litres of wash intended for the manufacture of illicit arrack in a mud pot. The sample of the wash on analysis was found to contain 1.86 per cent of ethyl alcohol. The concurrent findings of guilt based on the evidence was not seriously attempted to be challenged. The attempt was only to attack the conviction and sentence on certain alleged illegalities and irregularities.

3. The first contention was that sample of wash was not given to the revision petitioner and the report of analysis contains only the conclusions and not the data. These are contentions not raised before the trial Court or the Appellate Court. There is no provision in theAbkari Act , as in thePrevention of Food Adulteration Act, enabling the accused to have a second analysis of the sample. So also there is no provision to supply sample to the accused. The contraband articles are being produced in Court by the Excise Officials with the necessary requisition for sending samples for analysis. Samples are sent from Court and reports are received in Court. There is absolutely no legal basis for the contention that trial and conviction are vitiated by the alleged irregularity or illegality of not supplying the sample of wash to the revision petitioner. There is no case that the necessary records enjoined by law were not supplied. Supply of sample is not a mandate of any legal provisions and hence the accused has no right to insist on such a condition. If the correctness of the result of chemical analysis is disputed that is also a contention which ought to have been taken up before the trial Court and attempts made to substantiate the same before the trial Court. No such attempt was made and no such contention was also raised before the Magistrate or the Sessions Judge. Now it is too late to contend that the report of chemical examination is defective. The report shows that wash seized from the revision petitioner is a material for the purpose of manufacturing liquor. This is all what is required for proving the offence punishable under section 55(g).

4. The only other contention was that the provisions of section 167(5) of the Code of Criminal Procedure was violated and hence cognizance of the offence, trial and conviction are all vitiated. Section 167(5) of the Code of Criminal Procedure reads:

“If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.”

In David v. State of Kerala David v. State of Kerala (1984) K.L.T. 849, it was observed:

“Sub-clause (5) of section 167 is mandatory, affects the jurisdiction to continue investigation and statutorily prescribes the period during which alone investigation can be conducted. Just as the police cannot continue investigation after the lapse of six months from the date of arrest of the accused in a summons case, so also, the Court cannot take cognizance of the case on the basis of an investigation continued thereafter. When there is a statutory termination of the investigation, prosecution which is a continuation of the investigation cannot also proceed. The cognizance taken subsequently in violation of section 167(5) does not validate the investigation continued a