A conviction under the Abkari Act requires both competent detection and a clear chain of custody for evidence, failure of which warrants acquittal.

JUDGMENT

Aggrieved by the judgment dated 27.02.2008, passed by the Additional Sessions Court (Adhoc)-II, Kalpetta in Sessions Case No.83/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8 (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh.

2. The prosecution case is that on 20.09.2004 by 11.30 hours, the appellant/accused was found transporting 5 litres of illicit arrack at Edakkunnu Colony on the Kurumbalakotta –

Kottathara road in violation of the provisions of the Abkari Act . 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8 (2) of the before the jurisdictional Magistrate. The case was committed to the Sessions Court, from where it was made over to the trial Court. On the appearance of the accused charge was framed against him for the offence punishable under Section 8 (2) of the . The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence.

4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P8 and MO 1.

5. After the closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. Exts.D1 & D2 were marked on the side of the defence. The Trial Court, after hearing the arguments addressed on both sides found the accused guilty of the offence under Section 8 (2) of the Abkari Act and convicted him thereunder.

6. Heard Smt. Celine Joseph, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent.

7. The impugned judgment of conviction and sentence is challenged on the following grounds:

(1) The detection was made by an incompetent ofÏcer.

(2) The prosecution has not succeeded in proving that the arrack allegedly seized from the possession of the accused reached the Chemical Examiner’s Laboratory.

8. The learned counsel for the appellant/accused relying on SRO 234/1967, a Government notification issued under Section 4 of the Abkari Act , contended that the detecting ofÏcer is incompetent to effect detection. The learned counsel placed reliance onSubrahmaniyan v. State of Kerala ( 2010 (2) KLT 470 )

to buttress her arguments.

9. The detection was effected by the Assistant Excise Inspector, Excise Range ofÏce, Kalpetta. The detection was made on 20.09.2004.

10. The Government notification issued as SRO.No.234/1967 had authorised various categories of Excise OfÏcials to discharge the various functions under the Kerala Abkari Act as Abkari OfÏcers. By the said notification only Abkari OfÏcials attached to Excise Range OfÏces or Circles, or such ofÏcers in charge of distilleries, warehouses, wineries etc., were given powers as Abkari OfÏcers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Item No.8 of the notification reads as follows:

“In exercise of the powers conferred by Section 4 of the Abkari Act , 1 of 1077 and of all other powers hereunto enabling and in supersession of the previous notifications on the subject, the Government of Kerala hereby appoint the ofÏcers mentioned in column (1) of the Schedule to exercise the powers and perform the duties specified in that column with jurisdiction over the areas specified against each in column (2) of the said schedule, namely:-

Schedule