JUDGMENT

This appeal was directed against the judgment of the Additional Sessions Court (Adhoc-II), Kozhikode, dated 02.01.2010 in S.C.No.603 of 2007. The appellant was convicted and sentenced for an offence punishable under Section 8(2) of the Abkari Act, 1077. The legality and propriety of the said judgment is under challenge in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973.

2. The charge against the appellant was that at 11.30 a.m. on 27.06.2005, he was found carrying four litres of arrack in a plastic can along Kaithapoyil-Chembrapatta road in front of the house of Kalladikunnummal Aboobaker in Puduppady desom.

3. The Additional Sessions Court tried the appellant on the said charge and at the trial, PWs.1 to 4 were examined and Exts.P1 to P5 were marked. MO1 was identified also. During the examination of the appellant under Section 313(1)(b) of the Code, he denied the commission of the offence and claimed to be innocent. No defence evidence was let in.

4. On 27.01.2010, this appeal was admitted to file and as per order in Crl.M.A.No.928 of 2010, the sentence imposed on the appellant was suspended and he was released on bail on the conditions mentioned therein.

5. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor.

6. PWs.1 and 2 are officials, who detected the offence. PW1 is a Preventive Officer in the Excise Department and PW2 is an Excise Guard. Both of them deposed regarding the incident in detail. While they were on patrol duty, happened to see the appellant coming carrying a plastic can along the road in front of the house of Kalladikunnummal Aboobaker at about 11.30 a.m. on 27.06.2005 and when inspected, the can in his possession contained four litres of arrack. Therefore, he was arrested and the contraband was seized. Two samples of 180 ml. each were drawn. The material objects, including the samples, were sealed and labelled at the place itself and for the seizure of the same, mahazar was prepared, which is Ext.P1. They had identified MO1 as the plastic can seized from the possession of the appellant.

7. PWs.3 and 4 are attestors to Ext.P1. But both of them denied having seen the incident. Despite lengthy examination by the Public Prosecutor in the nature of the cross-examination, he could not elicit any evidence from PWs.3 and 4 with respect to the arrest of the accused and seizure of the contraband from him. Therefore, the evidence available to prove the charge is the oral testimonies of PWs.1 and 2 alone. The investigating officer also was not examined.

8. The learned Additional Sessions Judge relying on the law laid down by the Apex Court in Tahir v. State (Delhi) [AIR 1996 SC 3079] and Karamjit Singh v. State (Delhi Administration) [AIR 2003 SC 1311] held that evidence of PWs.1 and 2 supported by Ext.P1 sufficiently had proved the charge levelled against the appellant.

Accordingly, the accused was convicted and sentenced.

9. The learned counsel appearing for the appellant would submit that PW1 was incompetent to take any step in investigation and submission of a report as contemplated in Section 50 of the Abkari Act and in the absence of any evidence as to who did all such acts, the conviction of the appellant is illegal. Non-compliance of Section 53A of the Abkari Act is also highlighted as a reason for unsettling the conviction. In this regard, the learned counsel placed reliance on the decision in Appu v. State of Kerala [2016 (5) KHC 310], wherein it was held that non-compliance of Section 53A of the Abkari Act may become fatal to the prosecution, if there is delay in production of the seized articles and samples before the court and the prosecution could not explain the delay satisfactorily.

10. The learned Public Prosecutor, on the other hand, would contend that PW1 is competent to effect seizure and to do the necessary follow up actions in the light of the notification issued in G.O.(Ms) No.356/67/Rev. dated 10.08.1967. It is therefore conten