The court affirmed that the Preventive Officer's testimony could substantiate a conviction under the Kerala Abkari Act, despite procedural irregularities.

J U D G M E N T

This appeal is preferred against the judgment of conviction dated 19.10.2005 made in S.C No.40 of 2002 on the files of the Additional Sessions Court, Thalassery. The conviction is under section 55(a) r/w Section 8(2) of the Kerala Abkari Act and sentenced to undergo Simple Imprisonment for one year and to pay fine of Rs.1 lakh, in default, Simple Imprisonment for three months.

2. The facts of the case necessary for disposal of this appeals are as follows.

3. The Preventive Officer attached to Mattannur Excise Range Office detected the abkari offence on 24.07.2000. The appellant was seen in possession of 150 packets, each having a capacity of 100 ml and containing Karnataka arrack.

The Preventive Officer seized the contraband. Two packets were taken and opened and sample collected and reported the matter to the Excise Inspector. Crime was registered therein and after investigation, filed the charge. Prosecution altogether examined three witnesses and Exts.P1 to P6 were marked. Mos 1 and 2 also were marked. After appreciating the evidence, the court below convicted the accused and sentenced as stated above.

4. When the appeal came up for hearing, the learned counsel for the appellant vehemently submitted before this Court that here is a case, where, the prosecution examined only three witnesses. Out of the three witnesses, two were hostile. The remaining only one witness is none other than a Preventive Officer. It is the submission of the learned counsel that even though the offence alleged is punishable with 10 year imprisonment, the prosecution had not examined nor adduced any evidence other than PW1 to substantiate their case. It is the submission of the counsel that PW1 cannot have the powers to detect the case as per the provisions of the Abkari Act. It is also the submission of the learned counsel that, when there is no evidence before the court to show that the article was actually produced before the Excise Inspector as contemplated under section 38 of the Abkari Act or an investigation was conducted by an Inspector having the powers under sections 40 to 53 of the Act, naturally, the non-examination of any of the above witnesses will cause prejudice.

5. It is also the submission of the learned counsel that as per the evidence of PW1, it can be seen that he had sealed the arrack packets in a gunny bag. No such sealed gunny bag had produced before the court, but at the very same time, the loose sachets contained arrack as well as a gunny bag. This is an indication that some-where either the gunny bag opened or what he deposed, is not correct. When such a glaring inconsistency is in the evidence of PW4 and further when the person whom the contraband was produced was not examined before court, prejudice is apparent and the appellant is entitled for benefit of doubt. It is also the submission of the learned counsel that the so produced jute bag was not even marked during the proceedings. The counsel also submitted before this Court that only one sample was collected against the mandate of Excise Manual. It is also the submission that there is nothing to show that what kind of seal was put by the Preventive Officer.

6. Heard the Public Prosecutor.

7. After hearing the Public Prosecutor, I perused the evidence on records in this case. It can be seen that one of the arguments advanced by the counsel is that two samples were not taken by the Preventive Officer as mandated under the Excise Manual . But surely, it is to be remembered that the Excise Manual has no legal backing. It can be only having the value of the office orders; a departmental direction, which cannot affect the prosecution or taken as a mandate in a legal proceeding.

8. The next point raised before this Court is regarding the power of the person who detected the crime. In this regard, S.R.O No. 234/67 dated 10.08.1967 is relevant to be noted. As per the said notification, which was issued under Section 4 of the Abkari Act, it can be seen that all the P