Procedural errors in evidence collection and lack of independent witnesses can result in the benefit of doubt for defendants under the Abkari Act.

JUDGMENT

This appeal is preferred against the judgment of conviction and sentence made in S.C.No.189/2000 on the files of the Court of Addl. Dist. and Sessions Judge ( Adhoc) Court I, Kollam. The first appellant was convicted for an offence under Sections 55 (a) and (b) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-. The second appellant was convicted for an offence under Sections 55 (b) of the and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-. 2. The prosecution case is that on 7.7.1998 at about 8.30 hours, PW1, the S.I. of Police got a reliable information that three persons are distilling arrack from the house of one Manoharan residing in Thazham muriyil puthen kandathil Thengumthara colony in Kizhakkekallada village. He immediately proceeded with a police party and found that three persons involved in distilling from a lean-to a building. One person ran away and two others were arrested from the spot. The distilling articles were also seized. The prosecution altogether examined three witnesses and Exts.P1 to P4 were marked. MO1 to MO3 series were also identified. After appreciating the evidence, accused Nos. 1 and 2 were convicted and sentenced as stated above. Accused No.3 was acquitted by the trial court. The challenge is against the said conviction and sentence.

3. When the appeal came up for hearing, the learned counsel raised two points for consideration :

4. It is submitted that here is a case where the prosecution got a case that clear information was received that distilling was going on in a house. But memorandum of search and search list were not prepared. The claim of the prosecution is that it was outside the house. But no scene mahazar was prepared.

5. It is submitted that even though the prosecution got a case that there was seizure as claimed by PW3, no independent witnesses supported the said claim. Surely, in the seizure mahazar there are two eye witnesses. Only one witness was seen examined who turned hostile. The second eye witness is a police officer who cannot be a witness to a seizure as per Section 36 of the Abkari Act .

6. I heard the learned Public Prosecutor.

7. In this case the allegation is that appellants were found distilling arrack and was in possession of arrack. Admittedly no forwarding note marked to link the arrack with the analysis report . The decision of this court inKrishnan H. v. State ( 2015(1) KHC 822 ) is relevant to be noted in this regard.

8. Now, regarding the conviction under Section 55 (b) of the Abkari Act . It is an admitted case of the prosecution that on a reliable information that distilling was going on in the house of one Manoharan, they proceeded for search and seizure. Surely, no memorandum of search was marked. Even though, the prosecution got a case that it is a leanto wherein the distilling was going on, no scene mahazar was seen prepared or marked. The case of the prosecution is that leanto was to a building belonging to one Manoharan. There is nothing to show that Manoharan is the person actually who owned the building. If there is no building as claimed, the whole case will fail. It is to be remembered that Police is prosecuting a very serious offence wherein the sentence is very harsh. Police not even bothered to prepare a scene mahazar during the investigation or even if prepared it was not seen marked. It is also relevant to note that the Sub Inspector is only an abkari officer as per SRO 321/1996. They are abkari officers vested with powers under Sections 31 and 34 as well as under Sections 40 and 41 of the . But Section 38 of the states as follows :

“38. Offences to be reported, etc. - Every officer of Government other than an Abkari Officer, shall be bound to give immediate information to an Abkari Officer, and every Abkari Officers shall be bound to give immediate information either to his immediate official superior or to an Abkari Inspecto