The appellant herein is the 1^st accused in

S.C.133/2002 of the Additional Sessions Court

(Abkari Act cases), Kottarakkara. She and the 2^nd

accused faced trial on the allegation that at about

6.30 p.m. on 16.8.1999, at the premises of the house

of the 1^st accused, the two accused were found in

possession of 6.5 litres of arrack for the purpose

of sale. The offence was detected by the Sub

Inspector of Police, Pooyappally. He arrested the

two accused on the spot, and seized the contraband

articles as per a mahazar. On the basis of the

arrest and seizure, he registered the crime, and he

himself conducted investigation and submitted final

report in court.

2.

The two accused appeared before the learned

trial Judge, and pleaded not guilty to the charge

framed against them under Sections 55(a) and (i) of

the Kerala Abkari Act (the Act). During trial, the

2^nd accused died, and the charge against him thus

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abated. Instead of framing charge under Section

8(2) of the Act, charge was framed by the trial

court under Sections 55(a) and (i) of the Act. The

prosecution examined four witnesses, and proved

Exts.P1 to P5 documents in the trial court. The MO1

to MO5 properties were also identified during trial.

The accused denied the incriminating circumstances

when examined under Section 313 Cr.P.C., and

projected a defence of total denial. She did not

adduce any evidence in defence. On an appreciation

of the evidence, the trial court found the 1^st

accused guilty. On conviction, she was sentenced to

undergo simple imprisonment for five years each, and

to pay a fine of Rs.1,00,000/- each. Aggrieved by

the judgment of conviction dated 23.4.2008, the 1^st

accused has come up in appeal.

3.

On hearing both sides, and on a perusal of

the materials, I find some infirmities and

illegalities in this case, vitiating the whole

prosecution. PW1 examined as independent witness

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turned hostile. PW2 is the Sub Inspector, who did

everything in this case, including detection, and

PW3 is the police constable, who assisted him. PW4

is the woman police constable, who assisted in the

arrest of the accused. PW2 and PW3 have given

evidence regarding the arrest of the accused, and

the seizure of the contraband articles. The crucial

question is whether the liquid contained in the can

was identified as arrack, as the prosecution would

allege.

4.

This Court has settled that the copy of the

forwarding note produced in court by the Detecting

Officer, or the Investigating Officer must be proved

in evidence, and it must contain the specimen of the

seal affixed on the sample. PW2 claims to have

collected sample from the total quantity of arrack.

He does not say what seal was affixed on the sample

by him. PW3 also does not say what seal was affixed

on the sample. The mahazar or the FIR also does not

contain the specimen of the seal affixed on the

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sample. The copy of the forwarding note is not seen

produced or proved in this case. Thus, there is

nothing to identify the sample produced in this case

as the sample collected from the possession of the

accused. In such a situation, the Ext.P5 report of

analysis will not bind the accused. I find that

there is nothing to show that the liquid contained

in the can seized by the Sub Inspector was

identified as arrack. On this ground itself, the

accused is entitled for acquittal.

5.

The detection in this case was made by the

Sub Inspector on 16.8.1999. The Ext.P3 property

list shows that the properties were produced in

court only on 6.9.1999. The Sub Inspector has no

explanation for this delay, and it is not known in

whose custody the properties were till 6.9.1999.

Tampering with the properties, in the above

circumstance, will have to be very much doubted.

6.

Everything in this case was done by the Sub

Inspector. He detected the offence, registered

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the crime, conducted investigation, and also