The judgment emphasizes the necessity of adhering to correct procedural protocols in criminal investigations, particularly in evidential matters, to safeguard defendants' rights.

J U D G M E N T

The appellant herein challenges the conviction and sentence against him under Section 55 (a) of the Kerala Abkari Act (for short 'the Act') in S.C No.261/2005 of the Court of Session, Thiruvananthapuram.

2. The prosecution case is that at about 12.30 pm., on

13.4.2003 at Amachal Muri, within the limits of the Kattakkada Police Station, the appellant was found possessing 2.5 liters of arrack in a plastic can of 10 liters capacity. The offence was detected by the Sub Inspector of Police, Kattakkada. The accused was arrested on the spot and the quantity of arrack was seized as per mahazar. The very same Sub Inspector registered the crime, investigated it and also submitted final report in court. After complying with the procedural formalities the learned Magistrate committed the case to the Court of Session, from where it was made over to the learned Additional Sessions Judge (Ad Hoc IV), Thiruvananthapuram for trial and disposal. Though this is a case of arrack, the Sub Inspector wrongly registered the crime under Section 55 (a) of the Act and he submitted final report also under (a) of the Act. The learned trial judge also framed court charge under (a) of the Act instead of framing it under Section 8 (2) of the Act, and finally made conviction also wrongly under (a) of the Act.

3. The accused pleaded not guilty to the charge framed against him under Section 55 (a) of the Act by the trial court. The prosecution examined four witnesses and proved Exts.P1 to P9 documents. MO1 to MO2 properties were also identified during trial. When examined under Section 313 Cr.P.C the accused denied the incriminating circumstances. However no evidence was adduced by him in defence. On an appreciation of the evidence, the trial court found the accused guilty under (a) of the Act. On conviction he was sentenced to undergo rigorous imprisonment for six months and to pay a fine of ₹1 lakh by judgment dated 6.7.2011. Aggrieved by the said judgment of conviction, the accused has come up in appeal. 4. When this appeal came up for hearing, it is submitted by the learned counsel that the whole prosecution in this case is vitiated by the infirmity that the whole exercise was done by the Sub Inspector, who detected the offence, and that the required sample was not properly and legally collected from the total quantity of liquor alleged to have been seized from the possession of the accused.

5. On hearing both sides and on a perusal of the materials I find that the required sample in this case was not properly and legally collected by the detecting officer, and that the one man show made by the Sub Inspector has caused serious prejudice to the accused. Of course, it is true that in the absence of any definite or clear prejudice to the accused the one man exercise done by the detecting officer can be accepted by the court, as legal. Here the detection was made by the Sub Inspector examined as PW4. He registered the crime, investigated it and also submitted final report. Now the question is whether any serious prejudice was caused to the accused by this one man show.

6. PW1 is the Section Clerk who dealt with the properties produced in court. Of course, the properties were produced in court by the Sub Inspector without any delay. Admittedly, no sample was taken by him from the total quantity of arrack allegedly seized from the possession of the accused. He has no such case in evidence and the mahazar also does not show that any sample was taken by him. Thus, admittedly the required sample was not taken by the detecting officer. Instead, at the court, the Section Clerk who dealt with the property took sample from the total quantity, he himself packed and sealed it and sent it to the chemical laboratory for analysis. It is not known under what authority he did so, or in what circumstance he happened to do it. There is nothing to show that he was authorised by the learned Magistrate specifically, or by an order. He does not explain how or under