JUDGMENT

Dated this the 16th day of March 2021 The accused in S.C.No.1050/2005 on the file of the Additional Sessions Court, Fast Track III, Thiruvananthapuram have filed this appeal challenging the judgment dated 28.02.2008, whereby they have been found guilty of offence under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for one year each and to pay a fine of ₹1,00,000/- each and in default of payment of fine to undergo imprisonment for a further period of 3 months each.

2. The case of the prosecution is that on

01.12.2004 at about 5.00 p.m., while PW4 and party were on patrol duty, they received reliable information that the accused were selling arrack at Kuzhiyam. On the basis of the information, they proceeded to the spot and found that the accused were holding black jerry cans. Accused were apprehended and it was found that the jerry cans were filled with arrack. The contraband articles were seized, the accused were arrested, a mahazar was prepared and on reaching the Police Station, PW4 registered a crime against the accused. Before the court below, PW1 to PW5 were examined and Exts.P1 to P9 were marked. MO1 series were identified and marked. On the basis of the evidence on record, the court below found the accused guilty of offences charged against them and imposed on them the sentence referred above.

3. Heard Sri.Dinesh M., learned counsel for the appellants and Smt.Sylaja, learned Public Prosecutor on behalf of the State.

4. The counsel for the appellants pointed out several discrepancies in the case put forward by the prosecution. Firstly, it is contended that the very same officer who detected the offence had arrested the accused, registered the crime, conducted the investigation and laid the charge, which the counsel submits is not the correct procedure that has to be followed. It is pointed out that under Section 38 of the Abkari Act, on detection of every breach of the provisions of Abkari Act, an Abkari officer has to give information of the offence to his immediate superior officer or to an Abkari Inspector which is a mandatory provision and that since this procedure has not been followed, the prosecution has to fail. The counsel relies on the decision of this Court in Suresh Babu V. State of Kerala [2017 (4) KHC 693]. Secondly, the counsel submits that it is seen from the property list, which is produced as Ext.P7, that the thondi articles were produced before the court on 02.12.2004, the next day after the alleged offence. He points out that after production of the thondi articles, the same were returned with direction to keep it at the Police Station until further orders. The endorsement in Ext.P7 shows that the above contention is justified. It can thus be seen that no sample was collected at the scene of occurrence nor was it collected at the time of production of the articles on 02.12.2004 before the Magistrate. Counsel submits that going by Ext.P8 forwarding note, the sample was sent for chemical examination only on 24.12.2004 and apparently the thondi articles were in the Police Station during the interregnum. There is no evidence tendered regarding the safe custody of the thondi articles in the Police station by any of the witnesses which is fatal for the prosecution case (See Anilkumar v. State of Kerala and anr. (2020 (4) KHC 172). At the same time, the thondi clerk has been examined as PW5. She has stated in the chief examination that she had, on direction by the Magistrate, verified the thondi articles and entered the details in thondi mahazar. She has further stated that 180 ml was taken as sample in 2 bottles from the cans produced and the same were sent for chemical examination. The date on which the sample was taken and the procedure that is followed for taking the sample is not mentioned. Admittedly, on 02.12.2004 itself the articles had been returned for keeping in the Police Station. There is no evidence regarding the day on which the articles were brought back to t