The appellant herein challenges the conviction and

sentence against him under Section 8(2) of the Kerala

Abakari Act (for short “the Act”) in SC No. 94/2006 of

the court of Session, Wayanad. He faced a trial before

the learned Additional Sessions Judge (Adhoc)II,

Kalpetta, on the allegation that at about 1.25 pm on

28.09.2005 at Mananthavady, he was found possessing

2400 ml of arrack, contained in 24 packets. The offenc

was detected by a Preventive Officer of the

Mananthavady Excise Circle. He arrested the accused on

the spot and seized the contraband articles as per a

mahazar. The Preventive Officer produced the accused

and the properties at the Excise Range Office,

Mananthavady where another Preventive Officer

registered the crime, and he also produced the accused

and property in court. Investigation was taken over by

the Circle Inspector of the Special Excise Squad,

Wayanad as directed by the Assistant Commissioner of

Excise, and a final report also filed by him in court.

2.

The accused appeared before the learned trial

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Judge and pleaded not guilty to the charge framed

against him. The prosecution examined six witnesses

and proved Exts. P1 to P7 documents in trial court.

The MO1 to MO3 properties were also identified. The

accused denied the incriminating circumstances and

projected a defense of total denial. He did not

adduced 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 simple imprisonment for

two years, and to pay a fine of 1,00,000/- (Rupees One

₹

Lakh only). Aggrieved by the judgment of conviction

dated 11.08.2006, the accused has come up in appeal.

4.

On hearing both sides and on a perusal of the

materials, I find some serious illegalities vitiating

the whole prosecution case. The benefit of these must

go to the accused by way of acquittal. Of the six

witnesses examined in the trial court, PW1 is the

Preventive Officer who detected the offence and PW2 is

the Excise Guard who assisted PW1. Two independent

witnesses examined as PW3 and PW4 turned hostile. PW5

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is the Preventive Officer who registered the crime and

occurrence report and PW6 is the Circle Inspector, who

conduct investigation and submitted final report.

5.

Of course, PW1 and PW2 have given evidence

regarding the arrest of the accused and the seizure of

24 packets allegedly containing arrack. They also

stated that the liquid contained in two packets was

taken as sample. The crucial question is whether this

liquid was identified as arrack as the prosecution

would allege. The forwarding note produced in this

case contains some specimen. It is not known, the

specimen of whose seal it is. This specimen was not

identified by PW1 as the specimen of the seal affixed

on the sample. This seal cannot be the personal seal

of PW1. It does not tally with the name, initials and

other descriptions of PW1. It is not known what seal

was in fact affixed on the sample. I find that there

is nothing definite to identify the sample produced in

court as the sample collected from the possession of

the accused.

6.

This court has consistently held in so many

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decisions that the various functions under the Act can

be discharged only by the Officers appointed as Abkari

Officers under Section 4 of the Act by the Government.

In terms of Section 4 of the Act, the Government of

Kerala issued a notification in 1967, as SRO 234 of

1967 by which different powers were conferred on

different categories of Excise Officials of the Regular

Excise Wing. Preventive Officers were given power to

detect the crimes under said notification, but they

were not given powers to register crimes or to conduct

investigation or to submit final report. Excise

Officials of the special wings and squads like the

Excise Intelligence Squad or the Excise Enforcement and

Anti-narcotic Special Squad were not