Unauthorized investigation by the excise officer vitiated the prosecution, emphasizing the necessity for statutory compliance in enforcement actions.

JUDGMENT

The appellant herein challenges the conviction and sentence against him in S.C.No.74 of 2010 of the Court of Session, Palakkad, under Section 55(a) of the Kerala Abkari Act. He is the sole accused in this case.

2. The prosecution case is that when the Preventive Officer of the Velamthavalam Excise Check Post intercepted and inspected a lorry at the check post on suspicion, a huge quantity of 1350 litres of spirit was found in a secret chamber above the driver's cabin. The appellant is said to be the cleaner of the said lorry, found inside the cabin at the time of the alleged detection. The driver of the lorry ran off and escaped, when the excise party proceeded to inspect the secret chamber containing spirit. The cleaner was arrested on the spot by the Preventive Officer, and the huge quantity of spirit, collected in different plastic cans was seized as per mahazar. The accused and the properties were produced at the Excise Range Office by the Preventive Officer, and there, an Excise Inspector registered a crime against the cleaner alone. Even crime was not registered against the driver who ran off and escaped. Investigation was taken over by the Circle Inspector of the Excise Enforcement and Anti Narcotic Special Squad, Palakkad as authorised by the Deputy Commissioner of Excise, Palakkad. After investigation, he submitted final report in Court without making earnest and effective efforts to trace out, and identify the driver who ran off and escaped from the spot. The Circle Inspector conducted investigation and submitted final report only against the cleaner of the lorry.

3. The appellant appeared before the learned Additional Sessions Judge, Palakkad, and pleaded not guilty to the charge framed against him under Section 55(a) of the Kerala Abkari Act. The prosecution examined six witnesses, and proved Exts.P1 to P20 documents. The MO1 property was also identified during trial. When examined under Section 313 Cr.P.C., the accused pleaded innocence, and contended that he was cleaner of the lorry just for a day, that he was not aware of any contraband article being transported in the lorry by the driver, and that he happened to be arrested just because, he was found inside the lorry. The accused did not adduce any evidence in defence. However, Ext.D1 portion of the statement given by a witness under Section 161 Cr.P.C. was marked. On an appreciation of the evidence, the trial court found the accused guilty. On conviction under Section 55(a) of the Kerala Abkari Act, he was sentenced to undergo rigorous imprisonment for four years, and to pay a fine of Rs.1,00,000/- (Rupees One lakh only) by judgment dated

22.06.2012.

4. When this appeal came up for hearing, the learned counsel for the appellant submitted that the appellant is entitled for acquittal on factual as well as legal grounds. On factual aspects he submitted that the prosecution brought against the cleaner of the lorry is really doubtful, and the person actually liable and responsible was in fact the driver who ran off and escaped. The learned counsel pleaded for the benefit of doubt in favour of the cleaner now being prosecuted. As regards the legal aspects, the learned counsel submitted that investigation in this case was done by an incompetent officer, and the final report was also submitted by him. The prosecution brought on the basis of the final report submitted by an incompetent person who is not authorised or appointed as Abkari officer under the law cannot be sustained, the learned counsel submitted.

5. On an appreciation of the evidence given by PW1, PW3 and PW7, I find that the prosecution has proved the detection alleged. Seizure of a huge quantity of 1350 litres of spirit from a lorry, as contained in a secret chamber above the driver's cabin, as per Ext.P1 mahazar is proved by the evidence of PW1, PW3 and PW7. This is a case where the independent witness supported the prosecution. His evidence is that he had seen the excise team seizing huge quantit