JUDGMENT

This appeal has been filed challenging the conviction and sentence imposed on the appellant/accused in S.C.No.357/2005 on the file of the Additional Sessions Judge, Fast Track Court No.II, Palakkad in a prosecution under Section 55(a) of the Abkari Act.

2. The appellant/accused was apprehended at Walayar Excise Check Post at about 6.30 a.m on 29.6.2004 while transporting about 13,504 litres of spirit in 383 plastic containers each having the capacity of about 35 litres in a lorry bearing Registration No.KL-04 J 3972. It was alleged that the above act of the appellant/accused constituted an offence under Section 55(a)

of the Abkari Act.

3. Following the investigation of the case, a final report was filed before the Judicial First Class Magistrate Court-I, Palakkad, from where it was committed to the Court of Sessions for trial and disposal. The same was originally made over to the Assistant Sessions Court, Palakkad for trial. The case was subsequently withdrawn and transferred to the Additional Sessions Judge, Fast Track Court No.II, Palakkad. A charge was framed by that Court alleging the commission of an offence under Section 55(a) of the Abkari Act. On the appellant/accused pleading not guilty, the prosecution examined PWs 1 to 6 and marked Exts.P1 to P7 documents as well as MO1 which was one of the plastic containers out of the total number of 383, containing the arrack. Following the closure of prosecution evidence, the appellant/accused was questioned under Section 313 Cr.P.C where he denied all incriminating evidence appearing against him. On the defence side, DW1 was examined. On an appreciation of the evidence, the trial Court came to the conclusion that the appellant/accused was guilty of the offence alleged to have been committed and therefore, convicted him for an offence under Section 55(a) of the Abkari Act and sentenced him to undergo rigorous imprisonment for nine years and to pay fine of Rs.10 lakhs and in default of payment of fine, to undergo simple imprisonment for two years. Set off as permissible in law was granted.

4. In support of the appeal, the learned counsel appearing for the appellant would contend that this appeal is liable to be allowed on a short point which is that the procedure contemplated by Section 53A of the Abkari Act has not been followed in this case. He submits that the case of the prosecution is that a very huge quantity of spirit (13504 litres) were being carried in about 383 plastic containers each having the capacity of about 35 litres in a lorry bearing registration No.KL-04-J-3972. It is also clear that only one of the 383 plastic containers was produced before the court. The sample was also drawn only from one of the plastic containers. This is clear from the evidence tendered by PW1. Learned counsel appearing for the appellant/accused submits that this Court had recently considered, in detail, the procedure contemplated by Section 53A of the Abkari Act in Balakrishna Rai V. State of Kerala [2020 (3) KLT 727] and held as follows ..

''14. The State Government has issued notification SRO No.740/2002 as G.O.(P) No.139/2002/TD dated 19.09.2002 in exercise of the powers conferred by Section 53A(1) of the Abkari Act. As per this notification, spirit, Indian Made Foreign Liquor and arrack have been specified as the liquors which may be disposed of by the authorised officer as provided in Section 53A of the Act.

15. Section 53A(2) of the Act provides that, where any such notified liquor, intoxicating drug or article has been seized under the Act, the authorised officer shall prepare an inventory of such liquor, intoxicating drug or article containing such details relating to their description, quality, quantity, mode of packing, marks, numbers of such other identifying particulars of the liquor, intoxicating drug or article or the packing containers in which they are kept, place of origin and other particulars, as the authorised officer may consider relevant to identify the liquor, i