J U D G M E N T

Appellant is the 1 st accused in S.C. No.215/2005 on the file of the Additional Sessions Judge, (Fast Track Court No.II-Adhoc), Thrissur. The above case is charge sheeted against the appellant alleging offence punishable under Section 8(2) of the Abkari Act.

2. The prosecution case is that, on 05-09-2003 at about

7.45 p.m., the 1 st accused was found in possession of 10 litres of arrack in a plastic can of 10 litre capacity on a scooter bearing Registration No. KBR 3446 and it was further found that 1 st accused had purchased the arrack from the 2 nd accused and thereby both the accused have committed the offence punishable under Section 8(2) of the Abkari Act.

3. To substantiate the case, the prosecution examined PW1 to PW6. Exts.P1 to P11 are the documents marked on the

side of the prosecution. MO1 and MO2 are the material objects.

4. After going through the evidence and documents, the lower Court found that, the 1 st accused committed the offence punishable under Section 8(2) of the Abkari Act. Second accused is acquitted by the lower Court. The 1 st accused is sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,00,000/-. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for a period of 45 days more. Aggrieved by the conviction and sentence, this Criminal Appeal is filed.

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

6. The learned counsel for the appellant submitted that,

Ext.P7, forwarding note is silent with regard to the name of the person through whom the sample is sent. The learned counsel relied judgment of this Court in Kumaran v. State of Kerala

[2016 (4) KLT 718]. The learned counsel also submitted that, the search, seizure and arrest in this case was within the jurisdiction of Irinjalakuda Excise Range. The investigation in this case was conducted by PW6. PW6 is the Excise Inspector, Kodungalloor. The learned counsel submitted that, he has no jurisdiction to investigating the case.

7. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the offence against the appellant and there is nothing to interfere with the conviction and sentence imposed by the trial Court. The learned Public Prosecutor submitted that, this Court may not interfere with the conviction and sentence on technical grounds.

8. The point for consideration in this case is that, whether the accused committed the offence under Sections 8(1) & (2) of the Abkari Act.

9. Admittedly, the search, seizure and arrest in this case was within the jurisdiction of Irinjalakuda Excise Range. PW6 is the Kodungalloor Range Excise Inspector. He investigated this case and submitted the final report based on the order of Assistant Excise Commissioner, Thrissur. The Assistant Excise Commissioner has no jurisdiction to delegate the power of investigation to another office. This point was considered by this Court in Balachandran v. State of Kerala [2020 (3) KHC

697] . The relevant portion of the above judgment is extracted hereunder:

“ 11. It is an admitted case that the arrest of the accused and seizure of the contraband article was within the limits of North Paravur Excise Range. Ext.P8 is an authorisation issued by the Assistant Excise Commissioner, Ernakulam, authorising PW1 to conduct special checking at Moothakunnam Toll. The seizure of the contraband articles was near Moothakunnam. In Ext.P8, it is clearly stated that the above order is passed for curbing the Indian made foreign liquor seconds and other illicit articles effectively. The counsel for the appellant submitted that there is no dispute that the officer of the Excise can arrest and seize any contraband article from any place. Section 4 of the