The appellant herein challenges the conviction and sentence against him under Section 8(2) of the Kerala Abkari Act (“the Act” for short) in S.C.No. 377/2007 of the Court of Session, Palakkad. He faced trial before the learned Additional Sessions Judge (Adhoc-I), Palakkad on the allegation that at about

6.00 p.m on 22.8.2005, he was found possessing 1.5 litres of arrack in a plastic can of 5 litres capacity. The offence was detected by the Assistant Excise Inspector of the Parali Exchange Range within his limits. He arrested the accused on the spot and seized the plastic can allegedly containing arrack. On the basis of the arrest and seizure, the Assistant Excise Inspector himself registered a crime and occurrence report. The Excise Inspector of the Range took over investigation and he submitted final report in court.

2. The accused appeared before the learned trial Judge and pleaded not guilty to the charge framed against him. The prosecution examined four witnesses and proved Exts.P1 to P5 documents in the trial court. The MO1 property was also identified during trial.

The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C.

He did not adduce any evidence in defence.

3. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for one year, and to pay a fine of 1,00,000/- by judgment ₹ dated 16.12.2009. Aggrieved by the judgment of conviction, the accused has come up in appeal.

4. On hearing both sides and on a perusal of the materials, I find some serious legal infirmities in this case, the benefit of which must go to the accused. PW1 is the Assistant Excise Inspector who detected the offence, and PW4 is the Excise Inspector, who conducted investigation and submitted final report in court. PW2 and PW3 examined as attestors to the mahazar turned hostile. PW1 has given evidence regarding the arrest of the accused and the seizure of the MO1 can allegedly containing arrack. He has also given evidence regarding the sampling process, including the specimen of the seal affixed on the sample. On these aspects, there is no doubt or confusion. But the issue is regarding the competence of the person, who discharged the important functions.

5. This Court has consistently held in so many decisions that the various functions under the Act can be discharged only by the Officers specifically authorised and appointed by the Government as 'Abkari Officers' under Section 4 of the Act. In terms of Section 4 of the Act, the Government of Kerala issued a notification in 1967 as SRO 234/1967 conferring various powers on different categories of Excise Officials. This notification was superseded by another notification issued as SRO 361/2009, dated

8.5.2009. The detection in this case was made prior to the second notification. As per the 1967 Notification, Assistant Excise Inspectors were not given any power under the Act. When even Preventive Officers were authorised to detect offences, such authorisation was not given to Assistant Excise Inspectors as per the 1967 Notification. Such category of officials got powers under the Act only in 2009 as per the second notification. Of course, it is true that investigation was conducted by the Excise Inspector and he submitted final report also in court. Discharge of these functions by the competent officer will justify or undo the illegalities in the detection process, and also in the registration of the crime and occurrence report. The crime and occurrence report in this case was also registered by the Assistant Excise Inspector. PW1, the Assistant Excise Inspector, had no authority as on the date of de