J U D G M E N T

This appeal is at the instance of the 1st accused in SC No.412 of 2006 on the file of Additional Sessions Judge (Adhoc)-1, Manjeri, assailing his conviction and sentence under Section 8(2) of the Abkari Act, as per judgment dated

11.09.2007.

2. The prosecution allegation was that on 03.12.2005, at about 7.00 p.m., the appellant/A1 was found in possession of 750 ml of arrack in a public road at Peruvambadam, contravening the provisions of Section 8(2) of the Abkari Act. It was the 2nd accused, who sold the arrack to him, and so he committed an offence punishable under Section 55(i) of the Abkari Act. The Sub Inspector of Police, Manjeri, charged them together under Section 8(2) and 55(i) of the Abkari Act.

3. On committal, both accused appeared before the trial court, and charge was framed against them. Both of them pleaded not guilty to the charge and claimed to be tried.

4. Thereupon, PWs 1 to 8 were examined, Exts.P1 to P14 were marked and MO1 was identified from the side of prosecution.

5. On closure of prosecution evidence, the accused were questioned under Section 313 of Cr.P.C. They denied the incriminating circumstances brought out in evidence and according to them, due to political vengeance, they were booked in a false case. Exts.D1, D2 and D2(a) were marked from the side of defence.

6. On analysing the facts and evidence, the trial court found that there was nothing to prove the guilt of A2 under Section 55(i) of the Abkari Act, and so he was acquitted. But relying on the testimony of PWs 1 to 3 and 7, the trial court found A1 guilty under Section 8(2) of the Abkari Act, and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/-, with a default sentence of rigorous imprisonment for a further period of six months. Aggrieved by the conviction and sentence, the 1st accused has come up with this appeal.

7. Heard learned counsel for the appellant and learned Public Prosecutor.

8. Learned counsel for the appellant submitted that the bottle allegedly seized from the 1st accused was not containing arrack. According to him, diluted rectified spirit with 35% ethyl alcohol alone can be called as arrack, and Ext.P8 chemical analysis report will not show any of the sample contained 34% ethyl alcohol. So, the sample seized was not arrack.

9. Sub-section (6A) of Section 3 introduced in the Abkari Act by the Act 4 of 1996, defines arrack as follows:

“[6A] Arrack. -- “Arrack” means any potable liquor other than Toddy, Beer, Spirits of Wine, Wine, Indian made spirit, foreign liquor and any medicinal preparation containing alcohol manufactured according to a formula prescribed in a pharma-copoeia approved by the Government of India or the Government of Kerala, or manufactured according to a formula approved by the Government of Kerala in respect of patient and proprietary preparations or approved as a bonafide medicinal preparation by the Expert Committee appointed under section 68A of the Act;]”

10. Learned Public Prosecutor would submit that the liquid seized from A1 was illicit arrack which contained alcohol, and it was not manufactured with the approval of Government. Ext.P8 chemical analysis report will show that the three samples contained ethyl alcohol by volume 30.51%, 29.87% and 30.23%, respectively. So the liquid seized from the 1st accused was illicit arrack as alleged by prosecution.

11. Learned counsel for the appellant pointed out that Ext.P3 seizure mahazar was not affixed with the specimen impression of the seal. According to him, in the absence of specimen seal in the seizure mahazar, the genuineness of the seal found in the sample bottle lose its authenticity. The specimen impression of the seal in the seizure mahazar prepared at the scene of crime will add authenticity to the seal found on the sample bottle, which was sent to the chemical examiner’s laboratory for examination. The detecting officer, who has drawn the sample, is bo