IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 29^TH DAY OF MAY 2023 / 8TH JYAISHTA, 1945 CRL.A NO. 1186 OF 2018 AGAINST THE JUDGMENT DATED 14.09.2018 IN S.C NO.879/2013 OF ADDITIONAL SESSIONS COURT - III, MAVELIKARA APPELLANT/ACCUSED:

SAJEEV, AGED 50 YEARS, S/O.KUMARAN, UDAYANMUTTATHU VEEDU, THAMARAKULAM MEKKU MURI, THAMARAKULAM PANCHAYAT, MAVELIKARA TALUK, ALAPPUZHA DISTRICT.

BY ADVS.

S.SHANAVAS KHAN S.INDU RESPONDENT/COMPLAINANT:

THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 29.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 29^th day of May, 2023.

The appeal on hand is directed against a judgment passed by Additional Court of Sessions -III, Mavelikara (for short ‘the trial court’) on 14.09.2018 in S.C No.879/2013.

2. The appellant is the sole accused involved in the above case. Charge was framed against him for an offence punishable under Section 55(i) of the Abkari Act, 1077 (for short, ‘the Act’). On raising a plea that he is not guilty, he was tried. The trial court found him guilty and convicted for the offence. He was sentenced to undergo simple imprisonment for a period of two years and to pay a `

fine of 1,00,000/- and in default to undergo Simple Imprisonment for one year more. The period of custody prior to imposing the sentence was also permitted to be set off.

3. Aggrieved thereby, the accused has approached this Court in the appeal on hand.

4. The specific contention advanced by Smt.S.Indu, the learned counsel for the appellant was that inordinate delay was there for the investigation to be completed by the Investigating Officer and to file a Final Report. According to her, cogent explanation is not forthcoming for the delay from the investigating officer during his examination and therefore, the prosecution case is defeated.

5. Argument secondly advanced by the learned counsel was that recovery of the contraband was allegedly effected from the possession of the accused as well as from a Bajaj Chetak Scooter bearing Registration No.KL-01-R-9793, which was parked nearby. According to him, the prosecution failed to establish that the accused is in any way connected to the said Scooter, wherefrom large quantity of contraband was seized. According to her, it was the bounden duty of the prosecution to establish that the Scooter is either owned or possessed by the accused at the relevant time of seizure of the contraband. It is contended by the learned counsel that the accused’s connection with the scooter having not been established, the prosecution case is liable to fail.

6. The argument thirdly advanced was that the Assistant Excise Inspector, who had conducted the investigation in the case on hand was not an Officer empowered to do so at the relevant point of time. According to her, the investigation being conducted by an officer, not competent under the Act to do so, the investigation cannot be treated as legal and proper.

7. It was contended by the learned counsel that delay was occurred in forwarding the properties to the court and the sample of the contraband to the Chemical Laboratory. He urged furthermore that the prosecution failed to adduce any evidence that the accused was engaged in the sale of Indian Made Foreign Liquor (for short, IMFL) from the spot at the relevant time of its seizure. The learned counsel canvassed for a reversal of the judgment under challenge for the reasons.

8. The learned Public Prosecutor has contended on the contrary that there was no delay in forwarding the contraband to the court as well as to the Chemical Examiner’s Laboratory. According to her, some delay was occurred for the investigation to be completed and the Final Report to be laid. The learned Public Prosecutor also contended that the delay occurred in the investigation would not adversely affect the prosecution case, when all other relevan