J U D G M E N T

This appeal is at the instance of the sole accused in SC No. 123 of 2009 on the file of IV^th Additional Sessions Judge (Adhoc -II) Thodupuzha, challenging his conviction and sentence under Sections 8(1) and 8(2) of the Abkari Act, vide judgment dated 12.10.2009.

2. The prosecution case was that, on 31.08.2008 at about

01.30 p.m., the accused was found transporting one litre of illicit arrack in a plastic bottle, near Munnar Grama Panchayat waiting shed at Vaguvara Kara in K.D.H. Village, Munnar. PW2 and Excise party detected the offence.

3. On committal, and on appearance of the accused before the trial court, charge was framed under Sections 8(1) and 8(2) of the Abkari Act, to which he pleaded not guilty, and claimed to be tried. PWs 1 to 3 were examined, Exts.P1 to P6 were marked, and MOs 1 and 2 were identified. On closure of prosecution evidence, accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record, and pleaded innocence. No defence evidence was adduced.

4. On analysing the facts and evidence, and on hearing the rival contentions from either side, the trial court convicted the accused under Section 8(2) of the Abkari Act, and sentenced him to undergo rigorous imprisonment for a period of 2 years, and to pay fine of Rs.1 lakh, with a default sentence of simple imprisonment for 6 months. Aggrieved by the conviction and sentence, the accused has preferred this appeal.

5. Learned counsel for the appellant relinquished his vakalath, and thereafter there was no fresh vakalath for the appellant. So Adv. Seena K was appointed as State Brief for the appellant.

6. Heard learned State Brief and learned public prosecutor.

7. Learned State Brief contended that, PW2 the preventive officer was not a competent officer to detect the offence, and so the trial was vitiated. Learned public prosecutor relying on the decision Umesh K v. State of Kerala 2022 KHC 1010: 2023 (1)

KLT 7, submitted that, even as per SRO No.234/1967, preventive officers of Excise Department were duly entrusted with the duties and functions in relation to Sections 31, 32, 34, 35, 38, 59, and 53 of the Abkari Act, and they were conferred with all the powers to perform all the duties assigned to Abkari officers under the aforesaid sections, and hence they were duly invested with the powers and functions in relation to detection of offences, search, seizure, arrest of offenders, etc, with respect to offences under the Abkari Act.

8. SRO No.361/2009, retained the powers of preventive officers to perform all the duties assigned to Abkari officers in relation to detection of offences, search, seizure, and arrest of offenders, with respect to offences under the Abkari Act. So, the contention taken up by learned State Brief that PW2 - the preventive officer was not competent to detect the offence, is not tenable.

9. Ext.P3 occurrence report was seen registered by PW2 - the preventive officer. PW3 - the Investigating Officer deposed before court that, he was on leave on the date of detection. Ext.P3 occurrence report shows that PW2 registered the crime and occurrence report as he was holding the charge of Excise Inspector, in his absence. Even though PW2 - the preventive officer was not competent to register the crime, as he was holding the charge of the Excise Inspector in his absence, he was competent to register the crime.

10. In Umesh’s case cited supra, this Court held that, merely on account of fact that, the preventive officer who was the Excise Inspector in charge, on the day in question has registered the crime and occurrence report, the investigation cannot be said to be illegal or ultravires, and the trial will not be vitiated on that account. So obviously PW2 - the detecting officer was competent to detect the offence, and also to register the crime and occurrence report, as he was holding the charge of Excise Inspector, on that day.

11. Coming to the evidence, PW2 - the preventive officer deposed