The decision affirmed that unauthorized actions by officers under the Abkari Act vitiate the prosecution's case, necessitating strict adherence to procedural requirements.

JUDGMENT

The appellant is the accused in SC No. 349/2002 on the file of the Addl.Sessions Judge, (Abkari cases) Kottarakkara. The above case is chargesheeted against the appellant alleging offences punishable under Secs.8 (1) and (2) of the Abkari Act .

2. The prosecution case is that on 1.6.1999 at 5.30 pm, the accused was in possession for sale and in transit of 10 litres of arrack in a jerry can through Kottarakkara-Oyoor road and hence, committed the offences.

3. To substantiate the case, the prosecution examined PW1 to PW4. Exts.P1 to P6 are marked as exhibits. MO1 is the material object. After going through the evidence and the documents, the trial court found that the accused committed the offence under Secs.8(1) and (2) of the Abkari Act . He is sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for six months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.

4. Heard Adv. Amalendu, who argued the matter in detail, who is the junior of Adv. Shabu Sreedharan. Heard the learned Public Prosecutor also.

5. Adv.Amalendu argued that the search, seizure and detection in this case is by an Asst. Excise Inspector who is not authorised as per the Abkari Act . Therefore, for that simple reason, the entire trial is vitiated. The counsel also submitted that the forwarding note is not marked in this case. The Public Prosecutor on the other hand submitted that there is oral and documentary evidence to prove the case and there is nothing to interfere with the conviction and sentence.

6. The point to be decided in this case is whether the accused committed the offence under Sec.8(1) and (2) of the Abkari Act .

7. Admittedly, the forwarding note is not marked in this case. The relevancy of the forwarding note in Abkari case is considered by this Court in several judgments. The non production of the same is fatal to the prosecution. In abkari cases, forwarding note is important because the specimen seal used by the detecting officer will find a place in it. It is the fundamental duty of the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the analyst. Forwarding note is one of the links to prove the prosecution case in abkari cases.

8. Moreover, an Asst.Excise Inspector conducted the search, seizure and arrest in this case. Asst. Excise Inspector is not authorised to conduct search, seizure and arrest in Abkari case. This point is also considered by this Court in several decisions.

9. The Assistant Excise Inspector is not authorised to conduct search and seizure as per the Abkari Act till 8.5.2009.

Admittedly in this case the seizure was on 1.6.1999. In Bhaskaran v. State of Kerala [ 2018 (4) KLT 894 ] and in Subrahmaniyan v. State of Kerala [ 2010 (2) KLT 470 ] and in Sasidharan v. State of Kerala [ 2012 (2) KLT 392 ] this Court considered this point. The relevant portion of the judgment in Bhaskaran’s case (supra) is extracted hereunder :

“12. Here in this case, PW1 was only an Assistant Excise Inspector. It was argued by the learned counsel for the appellant that the arrest of the accused, the seizure of the articles and sampling of the articles done by the Assistant Excise Inspector were without jurisdiction. Since the illegality annexed to the main parts i.e., the arrest, seizure and sampling, that will go to the root of the matter and hence the cognizance taken and the trial conducted based on such a report are vitiated. Though as per SRO No.234/1967, Preventive Officers were invested with the powers to be exercised under Sections 31, 32, 35, 38, 39, 53 and 59, since the preventive officers are officers specifically named as per the aforesaid notification, the arrest of the accused and seizure of the articles and the production of the accused and property before the Magistrate by the Assistant Excise Inspector, who is not a name