JUDGMENT

Dated this the 8 th day of March 2021 The 1 st accused in SC.No.768/2005 on the file of Additional Sessions Judge, Fast Track Court No.II, Palakkad has filed this appeal being aggrieved by the judgment dated 17.11.2006 whereby he was found guilty of offences under sections 55(g) and 8(2) of the Abkari Act and has been sentenced to undergo simple imprisonment for two years and to pay of fine of Rs. 1 lakh and in default of payment of fine, to undergo simple imprisonment for a further period of four months.

2. The case of the prosecution is that on 21.11.2001 at about 11 a.m, the appellant and one Prakasan were found transporting wash, fit for brewing arrack, measuring about 24 litres in two plastic pots. PW1 to PW4 were examined on the side of the prosecution and Exts.P1 to P7 were marked. PW1 and PW2 who were independent witnesses turned hostile to the prosecution. PW3 who was the then Excise Preventive Officer had given evidence regarding the incident. He has stated that the appellant alone could be apprehended at the time of the incident and that he gave information about the 2 nd accused. It is the prosecution case that 500 ml of the seized wash was taken as sample. It is seen from the judgment that when the plastic urns were produced before the Court it was empty. There is nothing in evidence to show whether the seized articles were disposed and if so, how. The trial Court found that the prosecution has not been able to prove the offence against the 2 nd accused and hence acquitted the 2 nd accused.

The appellant alone is found guilty of offence.

3. Heard Shri.C.Vinod Kumar, learned counsel on behalf of the

appellant and Smt.Shylaja, learned Public Prosecutor on behalf of the State.

4. The main contention raised by the counsel for the appellant is that, the case was registered by the Preventive officer and that the entire prosecution is vitiated since the Preventive Officer is not the authorized officer to register the case as per the Abkari Act. Learned counsel relies on the judgment of this Court in Vesan @ Unnikrishnan v. State of Kerala Crl.A.No.1926/2006. Paragraph 13 of the said judgment reads as follows;

“13. Admittedly, the Preventive Officer registered the case. According to him, he was in charge of Excise Inspector on that day. But when the Abkari Act authorizes certain person to do certain activities, simply because the Preventive Officer is in charge of the Excise Inspector, he can not register a case. This point is considered by this Court in judgment dated 21.12.2015 in Crl.Appeal.No.

300/2006. The relevant portion of the judgment is extracted hereunder;

“9. After having heard learned counsel for the appellant and the learned Public Prosecutor and having perused the records and provisions of the Act, there seems to be some force in the submission of the learned counsel for the appellant. To understand the position as contended by the learned counsel for the appellant, reference to the provisions is required. First among them being the definition of 'Abkari Officer' as contained in Section 3(2) of the Abkari Act which reads as follows:-

“3(2) Abkari Officer:- “Abkari Officer” means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5.”

Section 3(6) defines 'Abkari Inspector' as follows:

“3(6) Abkari Inspector.- “Abkari Inspector” means an officer appointed under Section 4, clause (d).”

Section 4 reads as follows:-

“4. The Government may, by notification in the Gazette:-

(a) The Government may appoint an officer to control the administration of the Abkari Department:- Appoint an officer, who shall be styled the commissioner of Excise and who shall, subject to the general control of the Government have Control of the administration of the Abkari Department and of the collection of the