Only authorized officers may investigate Abkari offences; procedural defects and delays detract from the prosecution's credibility.

JUDGMENT

Dated this the 26th day of February 2020 The appeal arises from the judgment of the Additional Sessions Judge (Fast Track Court No.-III), Palakkad in SC.No.417/2003, finding the appellant guilty for the offence under Section 55 (a) of the Kerala Abkari Act , convicting and sentencing him to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,00,000/-, with default sentence of rigorous imprisonment for a period of four months. The prosecution allegation, leading to the conviction of the appellant are as under :-

On 19.08.2002, while the Sub Inspector of Police, Sree Krishnapuram Police Station, along with police party was conducting patrol duty, at about 16.40 hours they received reliable information that the accused had stored illicit arrack for sale in his house situated near ALP School, Kulakkattukurussi. The Sub Inspector prepared a search memorandum and forwarded the same to the jurisdictional Magistrate Court and thereafter proceeded to the house of the accused. While conducting search in the house at about 17.15 hours, in the presence of witnesses, 2 ½ litres of illicit arrack kept in a black can, concealed inside an aluminum vessel and placed under a bench in the kitchen was recovered. The accused was arrested and 500 ml of arrack from the can was drawn as sample and the sample bottle as well as the remaining contraband were sealed by following the prescribed procedure and Crime No.98/2002 of Sree Krishnapuram Police Station registered against the accused.

2. In order to prove the prosecution case, PWs 1 to

5 were examined and Exts.P1 to P10 marked in evidence. MO1, the black can containing the contraband arrack was identified and marked. The accused denied all the incriminating circumstances put to him during the Section 313 Cr.P.C. examination, but did not choose to produce evidence, either oral or documentary, on the defence side. The trial court, on appreciation of evidence and the contentions urged, came to the conclusion that the prosecution had succeeded in proving the guilt of the accused and therefore convicted the accused for the offence under Section 55 (a) of the Abkari Act and sentenced him in the manner aforementioned.

3. Assailing the findings in the impugned judgment, the learned counsel for the appellant contended that the conviction under Section 55 (a) of the Abkari Act was illegal, inasmuch as the provision under which the accused could have been charged was under Section 58 of the Abkari Act. In support of his contention, the learned counsel placed reliance on the decision of the Division Bench of this Court in Surendran v. Excise Inspector [ 2004 (1) KLT 404 ]. The other contention is based on the undisputed fact that, after detection, arrest and seizure by the Sub Inspector of Police (PW3), the investigation was entrusted with PW4, the Head Constable. It is contended that the Head Constable is not an Abkari Officer or a person authorised to conduct an investigation into an abkari offence as per Section 4 of the Abkari Act and therefore, by the investigation being entrusted with an incompetent officer, the final report, the cognizance taken and the trial itself is vitiated. Finally, it is contended that there is an unexplained delay of four days in producing the sample before the court, by which also the trial stood vitiated.

4. As far as the first contention based on the decision of this Court in Surendran's case (supra) is concerned, it is true that the Division Bench held that case in which arrack is recovered from a person's possession will fall within the ambit of Section 55 (a) of the Act, only when the person is found to be in possession of liquor in the course of import, export, transport or transit of the contraband and that in case the possession is merely with the knowledge of the goods having been illegally imported or manufactured, the case would fall within the mischief of Section 58 of the Act. But, having held so, the Division Bench did not acquit the ac