1. The appellant is the accused in S.C.No.389/2005 on the files of the Additional Sessions Court (Adhoc)-II, Thodupuzha. The court below found that the appellant is guilty under Sections 55(a)(g) and 8(2) of the Kerala Abkari Act and sentenced him to undergo rigorous imprisonment for one year and to pay Rs.1,00,000/- as fine for offence under Section 55(g) of the Kerala Abkari, in default to undergo rigorous imprisonment for three months for offence under Section 8(2) of the Kerala Abkari Act.

2. The prosecution allegation is that on 13.04.2002, at 6.00 p.m., the Assistant Excise Inspector, Kattappana searched a building bearing No.X/326 of Kanchiyar Panchayath and detected 1 litre of arrack, which was found being hidden among the household utensils at the kitchen. It was also alleged that the excise party detected 54 litres of wash from the garden land in which the building is alleged to be situated. The further allegation of the prosecution is that the said building and the garden land belongs to the appellant and that the appellant is punishable under the Abkari Act. The prosecution has miserably failed to prove that the appellant is the owner and in exclusive possession of the garden land and building. Even then, the learned Sessions Judge has convicted the appellant for the above said offences. Highly aggrieved by the judgment of conviction and sentence dated 14.03.2010 in SC.No.389/2005 on the files of the Additional Sessions Judge (Adhoc)-II, Thodupuzha, this appeal has been preferred.

3. The appellant has taken a ground in the appeal that the court below failed to note the fact that the prosecution relates to a detention from the building No.X/326, whereas the appellant is residing in building No.XII/491, as evidenced by Ext.D1 ration card. The arrack was found hidden among the kitchen utensils and at the time of search, the appellant as well as his wife were alleged to be present at the house. The appellant produced his ration card to prove the fact that there are altogether 5 adult members in his home. It was also contended that he is not in exclusive possession of the building. Another contention raised by the appellants counsel was that the prosecution has not produced any piece of evidence to prove the exclusive possession of the contraband by the appellant and there is no piece of evidence on record to prove neither the ownership nor the possession of the land from where the wash was seized. The mahazar did not contain any description about the boundary demarcation of the property allegedly belongs to the appellant. The court below went wrong in appreciating the undue delay caused in producing the material objects before the court and the delay was not properly explained. For the reasons as mentioned above, the appellant prays for setting aside the judgment and conviction passed by the Additional Sessions Judge (Adhoc-II), Thodupuzha in SC.No.389/2005.

4. PW1 is the Asst. Excise Inspector, Kattappana, who was detected the offence. According to him, on 13.04.2002, while he was on patrol duty, he got information that the appellant was keeping arrack for sale in his house and also wash for distillation of arrack. After preparing the search memorandum and sending it to the court and after fetching witnesses, PW1 proceeded to the house of the appellant. He reached there at 6.00 p.m. The appellant and his wife were present in the house. On searching 1 litres of plastic bottle was found concealed in the kitchen. The bottle was examined and it contained 1 litre of arrack. Thereafter, the property of the appellant was also searched. On the root of a coconut tree, 10 meter away from the house of the accused, 3 plastic pots of capacity of 18 litres each were found concealed. The pots were examined and it contained wash for the distillation of arrack. Thereafter, the accused was arrested at 6.00 p.m. The sample of arrack was taken in a 375 ml. Bottle. The bottle containing arrack was also sealed and taken into custody. The sample of wash from one pot was taken in a 750 ml. bottle. The remaining wash was poured out.

5. The material objects were seized under Ext.P1 mahazar. Ext.P2 search list was prepared. PW1 has identified MO1 as the bottle containing arrack and MO2 series as the 3 pots which contained wash. On reaching the Excise Office, he registered Crime No.18/02. The evidence given by PW1 regarding detection of offence is corroborated by Ext.P1 mahazar prepared at the spot. Ext.P1 is in conformity with the evidence given by PW1. In Ext.P1 mahazar, it was stated that on getting information that accused was keeping arrack and wash in his house, PW1 proceeded to the house of the accused after fetching witnesses, the accused and his wife were present in the house. The house was searched and a 1 litre bottle containing 1 litre of arrack was found in the kitchen of the house and 3 plastic pots of 18 litre capacity each were found concealed on the root of a coconut tree, 10 meter away from the house of the accused and the pots contained wash. PWs 3 and 4 are signatories to Ext.P1 mahazar. Even though they admitted their signatures on Ext.P1mahazar, they deposed that they did not see the Excise Inspector, searching the house of the accused and seizing arrack as well as wash. They admitted that they signed Ext.P1 near the Balavadi at Kozhimala and that while they signed Ext.P1 mahazar, the appellant was also in the custody of Excise men. Hence the evidence of PWs 3 and 4 would show that the appellant was actually arrested by PW1. As usual, PW2, the village officer went to the spot and prepared Ext.P8 certificate stating that the appellant has in his possession 50 cents of non-patta land. A location mark is also attached to Ext.P8 certificate. Ext.P9 certificate issued by the Secretary, Kanchiyar Grama Panchayath is also relied by the prosecution. As per Ext.P9, the appellant is the owner of building bearing No.X/326.

6. On the other hand, the appellant produced Ext.D1 to show that he is not residing in building bearing No.X/326. Ext.D1 is the true extract of the ration card in the name of the appellant wherein the house number is marked as 12/491. The number of the house of the appellant as per the Building Tax Assessment Register for the year 1993 to 2004 is mentioned in Ext.P9. It is a true fact that the Assessment Registers maintained in the Panchayath in the State have not been revised after 1993. So, the fact pointed out by the appellant with regard to the difference of the residential number is not a material fact to be considered in this case.

7. As per the prosecution, the appellant was arrested from his own house namely Kuzhikattu house at Kozhimala kara. The address of the appellant as per the charge, Ext.P9 certificate and Ext.P8 certificate is one and the same. Moreover, the appellant was arrested from his house in the presence of his wife. The prosecution has also adduced evidence to the effect that the appellant was found in possession of the contraband liquor and was not able to account his possession of the same or offer any satisfactory explanation for possession. Then it can legitimately be presumed that the appellant was in possession of the contraband liquor. This fact has been reiterated in Paravan v. State of Kerala [2007 (1) KLJ 1 [LQ/KerHC/2006/1049] ]. It was also argued by the learned counsel for the appellant that as per Ext.D1 ration card, there are 5 adult members in the house of the accused. But, it is peculiar to note that at the time of detection of the offence, the appellant as well as his wife was present inside the house. Moreover, the contraband articles were seized from inside the kitchen of the house.

8. Further, it was argued by the learned counsel for the appellant that there is a delay in producing the material objects before the court. The offences alleged to have detected on 13.04.2002, which was a second Saturday. The material objects were produced before the court on 16.04.2002 itself. The search memorandum was reached before the court only on 16.04.2002. The evidence of PW1 would show that he had actually posted Ext.P3 on 13.04.2002 itself. That is the day of detection of the offence. The lower court has discussed the fact and found that the delay was caused since the intervening day was Sunday and so, practically, there is no delay in producing the contraband articles before the Court. It is true that immediately after the detection of the crime, the contraband articles were seized by the Assistant Excise Inspector and it was kept in his custody till 16.04.2002. No further explanation was given by the detecting officer, why he had kept the sample bottle in his custody.

9. The prosecution has to establish that the sample was kept under the custody of the detecting officer intact. But, no such evidence is forthcoming. The sample produced before this Court was sent to the chemical examiner for analysis through the process of the court. Ext.P10 is the chemical examination report, which would show that Item No.1 was the sample of arrack contained 27.81% by volume of ethyl alcohol and Item No.2 was brownish turbid liquid with sediments with characteristic of wash and it contained 9.04% by volume of ethyl alcohol. According to the prosecution, Ext.P10 chemical examination report is sufficient to prove that the appellant has kept arrack in the kitchen of his house and also wash in his property. Accordingly, the lower court found that the possession of arrack is an offence punishable under Section 8(2) of the Abkari Act and possession of wash for distillation of arrack attracts offence punishable under Section 55(g) of the Abkari Act and accordingly he had committed the offence.

10. Therefore, I do not find any ground to interfere with the finding with regard to the conviction of the appellant under Section 55(g) and Section 8(2) of the Kerala Abkari Act. At last, the appellants counsel has pointed out that the offence has been detected by the Assistant Excise Inspector, who has no authority at the time of detection of the offence.

11. In this connection, he has cited a ruling held in Parathi Sasidharan v. State of Kerala [2012 (2) KLT 392]. According to the learned counsel for the appellant, the Assistant Excise Inspector, who detected the offence was not a competent and authorised officer as contemplated under the provisions of the Kerala Abkari Act. Therefore, the arrest and seizure made by PW1 is illegal. It was argued by the learned counsel for the appellant that as per Section of the Abkari Act, all notification and orders conferring powers, imposing duties and making appointments under the Act may respectively refer to the persons concerned specially by name or in virtue of their office or to classes of officials generally by the official titles. It was also argued that since as per the notification in SRO 234/1967, it was specifically mentioned that the acts and duties mentioned in S.40 to 53 of the Act are to be performed by the officer not below the rank of Excise Inspector.

12. Here in this case, PW1 was only an Assistant Excise Inspector. It was argued by the learned counsel for the appellant that the arrest of the accused, the seizure of the articles and sampling of the articles done by the Assistant Excise Inspector were without jurisdiction. Since the illegality annexed to the main parts i.e.the arrest, seizure and sampling, that will go to the root of the matter and hence the cognizance taken and the trial conducted based on such a report are vitiated. Though as per SRO.No.234/1967, Preventive Officers were invested with the powers to be exercised under Sections 31, 32, 35, 38, 39, 53 and 59, since the preventive officers are officers specifically named as per the aforesaid notification, the arrest of the accused and seizure of the articles and the production of the accused and property before the Magistrate by the Assistant Excise Inspector, who is not a named or notified officer, are without jurisdiction as has been held by this Court in Subrahmaniyan v. State of Kerala [2010 (2) KLT 470 [LQ/KerHC/2010/280] ].

13. It has also come out in evidence that the notification-SRO.361/2009 dated 08.05.2009, as per which the Assistant Excise Inspector of the Range were empowered to exercise all the powers and to perform all the duties of the Excise Inspectors subject to the control of the Excise Inspector. So, as per the latest notification of 2009, all officers of the Excise department not below the rank of Assistant Excise Inspector were empowered to perform the acts and duties mentioned in S.40 to 53 (both inclusive) of the Act. They were also empowered to exercise the duties under Sections 31, 32, 34, 35, 38, 39, and 53 of the Act and to exercise all the powers conferred and to perform all the duties assigned on Abkari Officers under the sections aforesaid.

14. In this case, the offence was detected on 16.04.2002 i.e. before the notification SRO.361/2009 dated 08.05.2009. So, the above said notification will not rescue the prosecution in this case since the offence was detected on 16.04.2002. So, the only basis on the notification SRO.234/1967, the Assistant Excise Inspector was not mentioned as authorised person to detect the offence. Only the offences detected by the Assistant Excise Inspector after 08.05.2009 is to be well within his power. So only the sole ground that the Assistant Excise Inspector was not empowered under the Act as has held in the ruling in Subrahmaniyans case (supra), the appellant herein is entitled to get acquittal as prayed for.

Accordingly this appeal is allowed.

In the result, the conviction and sentence in S.C.No.389/2005 on the file of the Additional Sessions Judge (Adhoc- II), Thodupuzha is hereby set aside. He is set at liberty. The bail bond, if any, executed shall stand cancelled.