JUDGMENT

The 4th accused in S.C.No.794/2001 on the file of the Additional Sessions Court for trial of Abkari Act cases, Neyyattinkara, has filed this appeal, being aggrieved by the judgment dated 14.08.2006, whereby he has been found guilty of offence under Sections 58 & 55(g) of the Abkari Act and has been sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of ₹1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of 6 months.

2. The case of the prosecution is that CW5 the Sub Inspector of Police, Neyyar Dam Police Station, on 26.06.1999 at about 5.00 a.m. received information over phone that arrack was being manufactured at the place Neduvaltheri Paramadankonam and when he reached the place at about 6.00 a.m., he found accused 1 to 4 engaged in distillation of arrack, using aluminium pots fitted with equipments for distillation placed on the fire hearth and that one among the accused was apprehended, while others took to their heels. It is stated that on searching the place, 2 aluminium pots of 40 litres capacity were placed on the fire, each containing about 10 litres wash, 2 black jerrycans of 20 litres size, each containing 15 litres of arrack, 2 brass vessels, one of 7 litres size and another of 5 litres size, placed above the pots etc. used for the purpose of manufacturing of arrack, were found and seized.

3. According to the prosecution, admittedly an inventory mahazar was prepared on the spot and wash was destroyed after taking sample from it. It is stated that CW5 effected seizure of thondi articles, which included samples of wash in 2 bottles each of 750 ml size and the utensils referred above. Exts.P1 to P13 were marked on the side of the prosecution and Exts.D1 to D3 series were marked on the side of the defence. PW1 to PW5 were examined on the side of the prosecution. DW1 to DW3 were examined on the side of the defence.

4. The trial court found that the prosecution has succeeded in establishing that the 4th accused was engaged in the manufacturing of illicit arrack. The prosecution could not succeed in establishing the charges against accused Nos.1 to 3. The trial court imposed the sentence referred above. The 4th accused is hence before this court in appeal.

5. Heard the learned counsel for the appellant and Smt.Sylaja, learned Public Prosecutor.

6. The main contentions raised in the appeal are that PW1 and PW2 are not independent witnesses as contemplated under Section 36 of the Abkari Act and that they are members of another wing of the Police force (Warden of Open Jail), that there is violation of the procedure prescribed in Section 53A of the Abkari Act, since according to the prosecution, the sample was taken on the spot and wash and other materials were immediately destroyed and that going through the records it is seen that a forwarding note has not been marked in the case as an exhibit.

7. After considering the contentions raised by the counsel for the appellant and on verification of the records, I find that the prosecution has not complied with the procedure laid down in Section 53A of the Abkari Act for the purpose of disposal of seized liquor, intoxicated drugs or articles. There is no inventory list prepared and application made before the Magistrate for the purpose of certifying the correctness of the inventories. Admittedly the wash and other materials were destroyed at the spot itself and an inventory mahazar alone was prepared by the officer who detected the offence. It is also seen that even though a sample was said to have been drawn at the spot, there is no forwarding note available in the file along with which the said sample was sent for chemical examination.

8. It is well settled by several decisions of this Court that the absence of producing and marking of forwarding note is fatal to the prosecution and in such cases, the accused are entitled to be acquitted. See Unnikrishnan Nair V. State of Kerala reported in (2020 (3) KH