J U D G M E N T

This appeal has been filed challenging the conviction and sentence imposed on the appellant who are accused No.1 & 2 in S.C. No.893/2005 on the file of the Additional Sessions Judge, Fast Track Court No.II, Palakkad in a prosecution under Section 55 (i) and Section 8 (2) of the Abkari Act.

2. The gist of the prosecution case is that on 25-08-2003 at about 9.30 a.m. PW1 the Sub Inspector of Police, Kuzhalmannam found the appellants/accused engaged in sale of illicit arrack and thereby they committed the offences under aforesaid provisions of the Abkari Act. Following 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 Sessions Court, Palakkad. The Sessions Court, Palakkad initially made over the matter to the Assistant Sessions Court (Prl.), Palakkad. Subsequently the case was withdrawn and transferred to the Additional Sessions Judge, Fast Track Court No.II, Palakkad for the purpose of trial and disposal. Charges were framed under Section 55 (i) and Section 8 (2) of the Abkari Act to which the appellants pleaded not guilty. The prosecution led evidence by examining PWs 1 to 8 and marking Exts.P1 to P8 documents and identifying M.O 1 to 5. Following closure of evidence the appellants/accused were questioned under Section 313 Cr.P.C. They denied all incriminating evidence appearing against them. However they failed to adduce any defence evidence. On a consideration of the matter, the trial court convicted the appellants/accused for offences under Section 55 (i) and Section 8 (2) of the Abkari Act and sentenced them to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- each and in default of payment of fine to undergo simple imprisonment for a further period of 4 months. Set off as permissible in law was allowed.

3. The learned counsel for the appellants submits that this appeal is liable to be allowed on a short point. He submits that though the incident is alleged to have been taken place within the territorial limits of Kuzhalmannam Police Station, the investigation into the matter was conducted by the Sub Inspector of Police, Puthunagaram Police Station. This, according to the learned counsel is contrary to the law laid down by this court in Narayanankutty v. State of Kerala; 2015 (1) KHC 702 and Kunhanna Poojari v State of Kerala; 2019 (4) KLT 91. He also submits that though the seizure of the contraband was on 25-08-2003 the contraband was produced before the court only on 30-08-2003 and there is no explanation regarding the delay in production of the contraband before the court. He also pointed out that the seizure mahazer in the case does not describe the seal used to seal the contraband and the samples drawn for the purpose of chemical analysis.

4. The learned Public Prosecutor however submits that detecting officer in this case is the S.I of Police, Kuzhalmannam Police Station and only the recording of statement of witnesses and preparation of scene mahazer etc were undertaken by the S.I of Police, Puthunagaram Police Station. He also submits that the final report was also filed by the S.I of Police, Kuzhalmannam Police Station and therefore there is no defect whatsoever in the investigation of the case. He also submits that the question of delay in production of the contraband does not arise for consideration as the appellant/accused has no case that the samples have been manipulated in any manner. He also submits that the forwarding note contained the specimen of the seal used while sealing the samples and the identity of the sample cannot be disputed.

5. On a consideration of the matter, I am of the opinion that the learned counsel for the appellants/accused is right in contending that the investigation of the case by the S.I of Police, Puthunagaram Police Station was not authorised by law. This court in Kunhanna Poojari (supra) has held after consideration of the provisions of Section