Statutory compliance in handling evidence under the Abkari Act is essential, and procedural lapses can lead to acquittal due to reasonable doubt.

ORDER

The revision petitioner is the 1st accused in S.C. No.269 of 2010 on the file of the Assistant Sessions Judge, Kasaragod alleging commission of offence punishable under Sections 55 (b) and 55(g)

of the Abkari Act .

2. The prosecution case is that on 02.05.2009 at 1.20 a.m the accused were found engaged in the manufacture of illicit arrack for the purpose of sale using various utensils for distillation in the reserve forest land situated around 300 metres east of a water tank belonging to the local panchayat on the north of Ganesha Mandiram in Mulleria town, Karaduka. The accused persons are thereby alleged to have committed the offence as aforesaid.

3. On the side of the prosecution PWs.1 to 5 were examined and Exts.P1 to P12 were marked and MO1 was identified.

4. The trial court on consideration of the evidence adduced found that the accused is guilty of the charges levelled against him and he was convicted and sentenced to undergo simple imprisonment for 2 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of three months. Set off was also allowed by the trial court.

5. An appeal preferred by the revision petitioner as Crl. Appeal No.43 of 2013 was dismissed by the appellate court confirming the conviction and sentence imposed by the trial court, but modified the sentence to undergo simple imprisonment for 6 months and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for 1 month. Aggrieved by the said conviction and sentence, this Crl.Revision Petition is filed.

6. The learned counsel for the revision petitioner raised the following contentions: The first contention is regarding the delay in the production of the seized contraband before the court. The specific contention raised by the petitioner is that though the alleged seizure was on 2.5.2009 and the sample collected from the two cans containing arrack and wash were produced before the court as per Ext.P5 property list only on 4.5.2009.

7. The second contention is regarding noncompliance of Section 53A of the Abkari Act . It is contented that though the allegation is that a can full of illicit arrack and another plastic can containing wash and other utensils were seized, the wash was destroyed then and there and the residue arrack can, utensils, implements and a mobile phone were taken into custody as per Ext P3 seizure mahazar and the sample was produced before the court as per Ext P5 property list. Since the wash was destroyed without following the provisions of Section 53A of the , the seizure etc remains doubtful. It is further contended that as per the evidence of PW4, the wash was destroyed on the spot and the balance of contraband properties was produced before the Assistant Excise Commissioner (authorized officer). PW4 further states that P7 inventory was prepared at the Adoor Police Station and the inventory so prepared was produced before the Assistant Excise Commissioner on 05.05.2009 and there is no evidence regarding the date on which the same was received by the Assistant Excise Commissioner and it cannot be said which police constable has prepared the inventory. Based on this it is contended that there is total noncompliance of Section 53A .

8. Yet another aspect to be considered is that the detecting party seized various articles including utensils and implements for the purpose of manufacturing arrack which were produced before the court as per Ext.P5 as item Nos. 3 to 7. A perusal of Ext.P5 would reveal that those articles were entrusted to the police for keeping in safe custody. It is seen that at the time of trial when the police was called upon to produce those materials it was submitted before court through Ext.P12 report that the articles so entrusted were lying buried under the remnants of the old police station building making it impossible to produce them before the court. In view of the same, the petitioner would con