The registration of an Abkari offence by a Preventive Officer who lacks legal authority to register such crimes vitiates the entire prosecution and renders the resulting conviction and sentence unsustainable in law.

O R D E R

This criminal revision petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure challenging the judgment of conviction and the order of sentence passed against the revision petitioner for the offence punishable under Section 8(2) read with Section 8(1) of the Abkari Act by the Assistant Sessions Court, Kasaragod, as per judgment dated 06.10.2012 in S.C. No.336/2010, which was subsequently confirmed in appeal by the Additional Sessions Court-III, Kasaragod, by judgment dated 21.10.2013 in Crl. Appeal No.200/2012. The revision petitioner is the sole accused in the said case.

2. The prosecution case, in brief, is that on 01.06.2008 at about

12.15 p.m., the accused was found in possession of and transporting 86 packets of arrack, each containing 100 ml, in contravention of the provisions of the Abkari Act. Thus the accused is alleged to have committed the offence punishable under Section 8(2) read with Section 8(1) of the Abkari Act.

3. During trial, the prosecution examined PW1 to PW5 and marked Exts.P1 to P11. After the closure of the prosecution evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure with regard to the incriminating circumstances appearing against him in evidence. The accused denied all such circumstances and pleaded innocence. Since the learned trial Judge found that this was not a fit case for acquittal under Section 232 Cr.P.C., the accused was called upon to enter upon his defence and adduce evidence, if any. However, no defence evidence was adduced.

4. Upon appreciation of the oral and documentary evidence on record, the learned Assistant Sessions Judge found the accused guilty of the offence punishable under Section 8(2) read with Section 8(1) of the Abkari Act and convicted him thereunder. Consequently, the accused was sentenced to undergo simple imprisonment for four years and to pay a fine of Rs.1,00,000/-. In default of payment of the fine amount, the accused was directed to undergo simple imprisonment for a further period of six months.

5. Aggrieved by the said judgment, the accused preferred Criminal Appeal No.200/2012 before the Sessions Court, Kasaragod. The learned Additional Sessions Judge, upon reappreciation of the evidence, dismissed the appeal and confirmed the conviction and sentence imposed by the trial court. Aggrieved thereby, the accused has preferred the present revision petition.

6. Heard Sri. Anoop P.V., the learned counsel appearing for the revision petitioner, and Sri. Sanal P. Raj, the learned Public Prosecutor. The records were also perused.

7. The learned counsel for the revision petitioner contended that the revision petitioner is innocent of the allegations levelled against him and that both the trial court and the appellate court failed to appreciate the evidence in its proper perspective. According to the learned counsel, the revision petitioner has absolutely no connection with the contraband allegedly seized in the case and has been falsely implicated on mere surmises and conjectures. It was further contended that the search and seizure procedures were not conducted in a foolproof manner, thereby leaving ample scope for manipulation and tampering. The learned counsel further pointed out that the crime was detected and registered by a Preventive Officer attached to the Excise Department, who was not competent, during the relevant period, to register an Abkari case. According to the learned counsel, the registration of the crime by an incompetent officer vitiates the entire prosecution, including the final report submitted before the court. On the aforesaid grounds, it was contended that the revision petitioner is entitled to