JUDGMENT

Dated this the 30th day of March 2021 The accused in SC.No.314/2005 on the file of the Court of Additional Sessions Judge (Adhoc-I), Thodupuzha has filed this appeal being aggrieved by the judgment dated 17.01.2006 whereby the appellant was found guilty of offence under section 55(a) of the Abkari Act and convicted and sentenced to undergo rigorous imprisonment for 3 months and to pay a fine of Rs.1 lakh and in default of payment of fine, to undergo simple imprisonment for a period of 3 months .

2. The case of the prosecution is that on 09.04.2000 at 4.00 pm, the accused was found transporting 7.5 litres of whisky and 4.75 litres of brandy in jute bag. The prosecution examined PW1 to PW4 and Exts.P1 to P7 were marked. It is seen from the material objects produced, that out of 38 bottles of liquor, 7 bottles were not available at the time of trial. On the basis of the evidence on record, the Court below found the appellant guilty and imposed the sentence referred above.

3. Heard, Shri.Jaison Joseph, learned counsel on behalf of the appellant and Smt.Shylaja, learned Public Prosecutor on behalf of the State.

4. The first contention raised by the counsel for the appellant is that the detecting officer himself has carried out the investigation in the case and has also laid the charge, which is not proper. Reliance is placed on Krishnankutty @Appu v. State of Kerala [2018 (5) KHC 463] wherein this Court has held that the detecting officer conducting the entire investigation and filing charge sheet is not proper and that the fair investigation which is the foundation of a fair trial postulates that the informant and the investigator must not be the same person. The second contention raised by the counsel for the appellant is that there are several infirmities in the prosecution case, which would entitle the appellant for the benefit of doubt and hence acquittal. He points out that the Mahazar which was prepared at the scene of occurrence by the detecting officer would show that after seizure of the contraband articles, 38 bottles of liquor contained in bottles of 350 ml capacity were together put into a sack and the sack was sealed and labelled and that the accused, the witness and the detecting officer had affixed their signatures on the labels. It is also stated that the sack was sealed. However, the 'thondy' list which was submitted before the Court, which has also been prepared on the very same day does not make any reference to the 'thondy' being put into a sack, sealed and labelled, with signatures of the accused, the witness and the detecting officer. The 'thondy' list produced as Ext.P3 shows 4 items, 1 and 3 being 19 bottles each of whisky and brandy and 2 and 4 being the sample of these two variants of liquor. The document further shows that items 1 and 3 were returned to the Excise Inspector for safe custody on the very same day. The counsel points out that 'thondy' articles were produced in the Court only on the next day and by that time, the sack in which the 'thondy' articles were kept, which had been sealed in the presence of the accused, the witness and detecting officer had vanished and there is nothing in evidence to explain the absence of these articles before the Court when it was produced before the Court. According to the counsel, there was serious doubt regarding the safe custody of the 'thondy' articles after it was seized and before it was produced before the Court. It is submitted by the counsel that the issue of safe custody is further worsened by the fact that the 'thondy' articles which were returned to the Excise Inspector for safe custody, were not at all safe as can be seen from the material objects which were produced at the time of trial and Ext.P6 report which was filed before the Court on 11.07.2006. Ext.P6 will show that even though 19 bottles of whisky were safe, one bottle of brandy had completely leaked and another bottle had lost one-half of its contents by leakage. It is also submitted