JUDGMENT

The appellant is the accused in Sessions case No.136/2005 on the file of the Addl.Sessions Judge, (Adhoc-I)- Ernakulam. The above case is charge sheeted by the Sub Inspector of Police, Vadakkekara against the appellant alleging offence punishable under Sec.55(a), (h), (g) and (i) of the Abkari Act.

2. The prosecution case is that on 3.8.2003, the Sub-Inspector of Police, Vadakkekara got information that the accused is distilling arrack and he proceeded to his house. It is the further case of the prosecution that the accused was found distilling arrack in a lean adjacent to his house. According to the prosecution, 4 cans of 10 litre capacity was seized with utensils. It is alleged that wash was also seized from the place. Hence, it is alleged that the accused committed the offence.

3. To substantiate the case, the prosecution examined PW1 to PW5, Exts.P1 to P9 were marked. Exts.X1 and X2 are the court exhibits. On going through the evidence and the documents, the trial court found that the accused committed the offence under Sec. 55 (b) and (g) of the Abkari Act. He is sentenced to undergo rigorous imprisonment for 6 months each under Sec.55(b) and (g) of the Abkari Act and also to pay a fine of Rs.1,00,000/- each under

Sec.55(b) and (g) of the Abkari Act. In default of payment of fine, the accused is directed to undergo simple imprisonment of 6 months each. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.

4. Heard counsel for the appellant and the Public Prosecutor.

5. The counsel for the appellant submitted that even though the alleged seizure in this case was on 3.8.2003, the contraband articles were produced before the Court only on 7.8.2003. There is absolutely no explanation from the prosecution for the delay in producing the contraband articles. The accused is entitled benefit of doubt on that reason itself. The counsel also submitted that the arrest memo is not produced and marked by the prosecution. To prove the search, seizure and arrest, the arrest memo is a vital document. The counsel submitted that for that reason also, the accused is entitled the benefit of doubt.

6. The Public Prosecutor submitted that there is oral and documentary evidence in this case to prove the case. The Public Prosecutor submitted that liquor along with utensils were seized from the possession of the appellant. The Public Prosecutor submitted that this Court may not acquit accused on technical grounds.

7. Admittedly, the alleged seizure in this case was on

3.8.2003. I perused Ext.P8 property list. As per the property list, properties reached the Court only on 7.8.2003. The explanation of the investigating officer is that it was in his safe custody. That is not an explanation which can be accepted by a court of law. When the provisions in Abkari Act mandate that the properties should be produced before the Court forthwith, the investigating officer or the detecting officer has no business to keep the properties in his safe custody. If there is no explanation for not producing the properties before the Court immediately, the accused is entitled the benefit of doubt.

8. The seizure of the contraband in this case was on 3.8.2003.

The sample reached the court only on 7.8.2003. There is no explanation from the part of the prosecution regarding the delay in producing the sample before the court. This point is also considered by this Court in Sukumaran v. State of Kerala (2019(3) KLT 920), Ravi v. State-Sub Inspector of Police, Meppadi (2018(5) KHC

352) and Vikraman v. State of Kerala (2018(1) KLT 822). Relevant portion of the judgment in Ravi 's case (supra) is extracted hereunder:

“8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 201