1. This Criminal Appeal is directed against the judgment dated 19.3.2009 of Additional District and Sessions Court (Adhoc) II, Kollam (for short the court below) in S.C.No.699/2008. The first and sixth accused in the said case are before this Court in the captioned appeal seeking reversal of the aforesaid judgment. Altogether nine accused were involved in the said case. The court below after an extensive trial and hearing of the arguments advanced by the prosecution and the defence found accused Nos.1 and 6 guilty for the offence under Section 8(1) of the Abkari Act (for short the Act) and convicted and sentenced each of them to undergo rigorous imprisonment for a term of three years and to pay a fine of Rs. 3,00,000/- under Section 8(2) of the Act. Accused Nos.2 to 5 and 9 have been found not guilty for the offence under Section 8(1) of the Act and accordingly acquitted under Section 235(1) Cr.P.C. Aggrieved by the judgment as aforesaid, the convicted accused are before this Court in the captioned appeal seeking to set aside the same. Parties to this appeal are hereinafter referred to as the accused and the complainant for the sake of convenience.

2. The case of the prosecution in brief is as follows:- The Sub Inspector of Police, East Police Station, Kollam while holding charge of the station received an information regarding the storage of spirit in House No.78 of Surabhi Nagar. A memorandum of search was prepared and forwarded to the court. Thereafter, himself along with his fellow Policemen and a woman Police Constable proceeded to the place where the house was situated. They reached the house at 22.15 hours. The front door of the house was kept closed, but lights were put on both inside and outside the house. Some Policemen were deployed to guard the front door. The Sub Inspector of Police proceeded to the rear side of the house. Through the door at the backside of the house which was kept opened, three persons rushed out and ran away. The Sub Inspector along with fellow Policemen entered into the house through the back door. In the central room of the house, accused No.1 was found pouring the liquid contained in a white can to three small white cans and a small black can held by accused Nos.2 to 5. The sixth accused, a lady was found standing inside the room. On enquiry, it was revealed to them that the sixth accused was the occupant of the house. Accused Nos.1 to 6 were arrested from the spot. The liquor in the cans was identified as spirit. The cans found there were seized. The large white can was found to have a capacity of 35 litres and contained 18 litres of spirit. The three small white cans were found to contain a total quantity of 12.750 litres of spirit and the small black can, four litres of spirit. 250 ml. of spirit was taken as sample from the large can of 35 litre capacity and 200 ml. each were taken from the other four cans as samples. The samples so taken and the residue were seized after affixing seals thereon. A large red bucket with water and a plastic mug, which was used to transfer spirit from the big can to the small cans, were also seized. The bucket was also seized after emptying the same. The accused were arrested. A search list was prepared from the spot. The contraband liquor, samples and other articles seized from the spot along with the accused were produced before the Police Station. Crime No.766/2001 was registered. On questioning, the first accused disclosed that 22 cans containing spirit were buried in the compound of Idayila veedu bearing House No.78, situated at Surabhi Nagar. Based on the information thus obtained, the Circle Inspector of Police along with accused No.1 proceeded to the said house. There, the Circle Inspector of Police dug the earth and 22 cans having 35 litres capacity each containing spirit were found. Those cans were seized and numbered with alphabets A to V. 200 ml. of liquor was taken as sample from each can. The samples were numbered with small alphabets a to v. All the 22 cans and samples taken therefrom were sealed. Signatures of the witnesses present were obtained in the labels and those were affixed on the cans and the samples taken therefrom. A seizure mahazar was prepared and the same also got attested by the witnesses. A property list was prepared. All the above items so prepared were forwarded to the court along with a requisition to send the contraband liquor and samples for chemical analysis. The accused were also produced before the court and got remanded to judicial custody.

3. Thereafter, all the accused in custody were released on bail. The investigation was completed and a final report was laid against accused Nos.1 to 6 chargesheeting them for the offence under Section 55(a) of the Abkari Act.

4. Accused Nos.8 and 9 were absconded, but later on surrendered before the Judicial First Class Magistrate Court-II, Kollam. The eighth accused being a juvenile, the case against him was transferred to the juvenile court. The seventh accused was not arrested then and therefore, the case against him was split up and refiled as C.P.No.49/2008. The case against accused Nos.1 to 6 and 9 were committed to the Court of Sessions, Kollam by proceedings initiated as C.P.No.7/2007. The case was made over by the Court of Sessions to the Additional District and Sessions Court (Adhoc) II, Kollam for trial.

5. Accused Nos.1 to 6 and 9 entered appearance before the court below. After hearing the prosecution and the defence, a charge was framed by the court for the offence under Section 8(1) and (2) of the Abkari Act against all the accused. The charge was read over and explained to each of them and they pleaded not guilty.

6. The trial was commenced. Seven witnesses were examined on the side of the prosecution as PWs.1 to 7 and nine documents were marked as Exts.P1 to P9. No material objects were marked. The accused was questioned with reference to the incriminating circumstances brought against him by the prosecution in its evidence. Each of them denied the incriminating circumstances so put to them and took the specific plea that they were falsely implicated.

7. The first accused had given a specific written version as follows:-

He was conducting an arrack shop and on account of the ban imposed for the conduct of such shops, he got shifted to some other business. On 28.8.2001, he was summoned by the Police to the Police Station. There, the Sub Inspector informed him that the Circle Inspector wanted to meet him. He was detained at the Police Station by the Circle Inspector of Police. After half an hour, the other accused were also brought to the Police Station. Thereafter, he was produced before the Magistrate alleging involvement in the case. One Sri.Anil Chandran, who is the seventh accused in the case was engaged in extensive business in spirit. The rest of the accused had complained against him and at his instance, they were implicated as accused in the case on hand.

8. The second accused has also made a similar plea of false implication based on the complaint he made against the said Anil Chandran. The third accused has taken the plea of total innocence. The case of the fourth accused was that he was arrested from his house at about 2 p.m. on 28.8.2001 and was falsely implicated as accused in the case on hand. The fifth accused has a case that he was running a hotel and therefrom, he was summoned by the Police of East Police Station, Kollam on 28.8.2001 and was falsely implicated in the case. The case of the sixth accused was that she was residing along with her daughter and on 28.8.2001, was taken into custody from the house of her daughter and has no involvement in the alleged offence. She has also a case that Idayilaveedu, wherefrom the alleged seizure of contraband was made, does not belong to her and she is residing at Kayamkulam. The ninth accused has also raised the plea of false implication on account of the complaint he had made against Anil Chandran.

9. Since no grounds are made out for entering into a finding of acquittal of the accused under Section 232 Cr.P.C., they were asked to enter upon their defence in the case. None of them turned up to adduce evidence, to defend the case.

10. The court below appreciated the evidence of the prosecution in the light of the arguments put forth by the learned Public Prosecutor and the learned counsel appearing for the defence and found accused Nos.1 and 6, guilty under Section 8(1) of the Act and acquitted the rest of the accused. Accused Nos.1 and 6 were convicted and sentenced to undergo rigorous imprisonment for three years and to pay fine of `3 lakhs each under Section 8(2) of the Act. They were also directed to undergo simple imprisonment for a further period of one year, in default of payment of fine.

11. Aggrieved thereby, the convicted accused approached this Court in the captioned appeal.

12. Sri.Nireesh Mathew advanced arguments for both the appellants and Smt.K.K.Sheeba, the learned Public Prosecutor, on behalf of the State/complainant.

13. Sri.Nireesh Mathew, the learned counsel for the accused has contended that there was total failure on the part of the court below to appreciate the evidence of the prosecution in its proper perspective. According to him, the evidence let in by the prosecution suffers from material flaws and those were not adverted to by the court below due to want of proper application of mind.

14. Per contra, the learned Public Prosecutor submitted that the prosecution has succeeded in establishing the case against the accused beyond reasonable doubt and the judgment under challenge does not suffer from any illegality, impropriety or incorrectness, calling for interference by this Court exercising the appellate jurisdiction.

15. The first point of argument raised by Sri.Nireesh Mathew was centered around the suspicion with regard to the arrest of accused Nos.1 to 6. According to him, the case of the prosecution was that three among the accused escaped from the scene when the Police party arrived at the spot. The remaining five were arrested by a Policemen and the only lady was arrested by a woman Police Constable. Therefore, according to the prosecution, altogether six accused were arrested from the spot. The counsel invited my attention to Ext.P3, the custody memo prepared by the Police at the time of arrest to contend that all columns provided therein for noting the particulars of arrest, except the one column wherein the name of the Police Officer, who arrested the accused was shown, were left blank. Therefore, Ext.P3, according to him, is not prepared in proper manner and it does not give a clear picture about the place wherefrom and the relevant time at which, the accused were arrested. The counsel also pointedly argued based on Ext.P4 Inspection Memo that though the date of arrest was noted therein as 28.8.2001, the time of arrest is not shown. The counsel has also drawn my attention to Ext.P1, the search list to contend that the search as well as the arrest were recorded therein as conducted at 10.30 p.m. on 27.8.2001. According to the counsel, Ext.P1 is the primary document evidencing the search of the contraband and arrest of the accused and the date borne therefrom being 27.8.2001, the seizure of the contraband and the arrest of the accused can only be taken to have effected on the said date. Since Exts.P3 and P4 bear the date 28.08.2001, those documents can only be taken as prepared on the said date, i.e.,the date succeeding the date of seizure. It is urged by the learned counsel that on account of the inconsistency existing with reference to the date, the prosecution case could only be viewed with suspicion. The counsel has also pointed out the specific case put forth by all the accused during their examination under Section 313(1)(b) Cr.P.C. that all of them were implicated into the crime falsely after taken into custody on 28.8.2001. The discrepancy in the versions of PW3, PW4 and PW6 regarding the number of persons arrested from the spot was also relied on by the learned counsel to rest his contention that the case of the prosecution is a fabricated story. The version of PW3 was that at the time of their entry into the room after reaching the spot, four men and a woman were found inside. PW3 went on stating further that five accused were arrested from the spot. PW4 has spoken in the box that five male accused found inside the room were arrested by the S.I.of Police and the only lady accused was arrested by the woman Police Constable. PW5, the S.I. of East Police Station, Kollam the leader of the detecting team has also spoken about the arrest of six accused from the spot. PWs.3,4 and 5 are the official witnesses, whose versions have been relied on by the prosecution to establish the seizure of the contraband and arrest of the accused. They were also divergent in their versions regarding the number of persons arrested from the spot on the day. Therefore, the prosecution cannot be said to have a consistent case about the number of the accused arrested from the spot. In the said circumstances, the plea of most of the accused of false implication assumes relevance. When the prosecution failed to establish a correct and consistent version as to the place and time of arrest of each of the accused, that would undoubtedly leave room to view their case as doubtful and to view the plea of false implication taken by the accused as a probable one.

16. The contention secondly advanced by the learned counsel was that arrest memo was not prepared in the case. According to him, what is prepared and produced before the court in evidence is only a custody memo and non-production of arrest memo is fatal to the prosecution. He has also relied on Ramankutty v. Excise Inspector, Chelannur Range [2013(3) KHC 308] to support his contention. According to him, the custody memo though prepared and available in evidence is not in true form as required by the Kerala Police Forms.

17. Arrest memo is required to be prepared contemporaneously at the time of arrest to show the genuineness of the arrest. Therefore, as rightly put forth by the learned counsel, it is a crucial document and with the availability of the same in evidence alone, the propriety and the regularity of the arrest could be ascertained. What is envisaged by the preparation of an arrest memo is only to ensure that the accused was arrested and taken into custody at a place, at a particular point of time and based on a specific and clear allegation of accusation against him. Only to ensure that these particulars were observed by the official at the time of arrest that the preparation of arrest memo is insisted. Therefore, the dictum laid down in the decision cited supra, which is relied on by the learned counsel, would squarely be applicable in the case on hand.

18. A document by name custody memo though available in evidence as Ext.P3, it is relevant to notice that the same is incomplete. As pointed out by the learned counsel, the document is silent with regard to the date and time of arrest of the accused. Then the question remains, when was the accused taken into custody by the Excise Officials and wherefrom. The nonmentioning of the date, time and place in Ext.P3 custody memo would assume relevance in the peculiar circumstance of the case wherein the dates of arrest of accused are noted distinctly as 27.8.2001 in Ext.P1 search list and as 28.8.2001 in Ext.P4 inspection memo. It follows therefrom that the prosecution has no consistent case as to the date and time of arrest of the accused. The different dates shown in Exts.P1 and P4 relied on by the prosecution to establish their case are also crucial when viewed in the backdrop of the plea of the defence that they were arrested on different dates and from different places and falsely implicated into the case.

19. The argument thirdly advanced by the learned counsel specifically pointed at the belated production of the contraband and the samples in the court. Ext.P7 is the property list marked in evidence. It does not bear the date. Therefore, when Ext.P7 was prepared by the investigating agency, is not known. The endorsement from the court in Ext.P7 makes it clear that the contraband, the samples and other items forwarded by the investigating officer, have been received by the court on 14.9.2001. Therefore, evidently, there was a delay of about 16 days for the contraband to reach the court after the date of seizure. According to PW6, the Circle Inspector of Police, the properties seized have been forwarded to the court on 29.8.2001. Neither PW6 nor PW5 has a case that the properties after seizure and before forwarding to the court have been kept in the safe custody of either of them. They have not even a case that the seized articles have been entrusted to any other officer for keeping in his safe custody during the period for which its production to the court was delayed. It is also relevant to notice from the endorsement of the court in Ext.P7 that due to insufficiency of space in the court to keep the articles in safe custody, those have been returned to be kept in the safe custody of the SHO of Kollam East Police Station. But, the endorsement in Ext.P7 is silent as to, by whom, at what time and to which place the articles have been taken thereafter. None of the officials have explained those aspects during their examination before the court. Ext.P8 is the report of examination of the contraband by the Joint Chemical Examiner to Government of Kerala. It shows that the samples, which have been forwarded to the laboratory, reached there on 17.10.2001. Neither PW6 nor PW5 has spoken during their examination about the affixture of any impression seal on the articles seized from the spot. The forwarding note does not find a place in the documents marked in evidence and available on record, despite the contention of the learned Public Prosecutor that it was prepared and forwarded. Therefore, there is nothing on record for the prosecution to convince the court that specimen seal impression was put on the articles seized from the spot. Explanation of any nature is also not forthcoming either from PW5 or PW6 regarding the delay occurred in forwarding the properties to the court and the person with whom those have been entrusted for safe custody. The learned counsel placed reliance upon Mohanan v. State of Kerala [2014(2) KLD 427] to substantiate his argument that unexplained delay in producing the contraband before the court after seizure is material and fatal to the prosecution. The learned counsel pointed out to the court that in Mohanans case supra, there was an unexplained delay of 10 days and on the ground, the conviction of the accused was set aside. To substantiate the argument that the prosecution is duty bound to explain in whose custody the articles seized have been kept after return of the same from the court, the learned counsel has placed reliance on Majeed Kutty v. The Excise Inspector, Kollam Range [2015(1) KLD 262]. It has been held by a single Judge of this Court in the case that when the articles after seizure were produced before the court, and was returned to the Excise Inspector for the reason of lack of space in the court for keeping those in safe custody, the failure of the officials to explain those aspects, will be fatal to the prosecution and the accused is entitled to the benefit of doubt. The learned counsel has also drawn my attention to Krishnan.H. v. State of Kerala [2015(1) KLD 421] to rest his contention that in the absence of a sample seal affixed on the space provided in the copy of the forwarding note, there is sufficient reason for presuming that the sample seal was not affixed. In the case on hand, the forwarding note as such is not produced and marked in evidence. Therefore, there is no scope for the prosecution, even to maintain a stand that sample seal was actually affixed on the articles from the spot. Ext.P8, the chemical examination report contains a reference of the Chemical Examiner at the time of receipt of the properties forwarded for examination that the seals on the bottles were intact and found tallied with the sample seal provided. In a circumstance when the forwarding note containing the sample seal impression was not made available to it, there is absolutely no basis for the Chemical Examiner to make such a reference in the report prepared by it. Therefore, there is every scope for a doubt to arise in the mind of this Court regarding the identity of the properties seized and those forwarded to the Chemical Examiner for the purpose of analysis.

20. The argument fourthly advanced by the learned counsel was that Ext.P6 seizure mahazar was seen attested by two witnesses. According to him, those witnesses have been cited by the prosecution as CWs.3 and 4 in the final report, but none of them had been examined during trial. Relying upon Narayana Velichappadu v. Sub Inspector of Police and another [2007(4) KHC 748], the learned counsel contended that the failure to examine the attestors of the seizure mahazar is fatal to the prosecution. In the case cited supra, it has been held by the court that in the absence of evidence to show that any pathway or entry leading to the place is there, wherefrom the cans were taken or seized by the Police, the non-examination of witnesses, who signed the same, is fatal to the prosecution. In the case on hand, as already pointed out, there is total want of evidence about the actual number of persons arrested from the spot and the date and time of their arrest. In such a circumstance, the non-examination of the independent witnesses, who have attested the seizure mahazar is a relevant and material aspect to adversely affect the prosecution case.

21. From the discussion of the evidence as aforesaid, it is pertinent to note that the prosecution has no consistency about its own case. Independent witnesses, who had attested the seizure mahazar, though cited by the prosecution in the witness list appended to the chargesheet were omitted to be examined. In the said circumstances of the case, the avoidance of examination by the prosecution of any of them is liable also to create a suspicion about their presence at the site at the relevant time to witness the seizure as contended by the prosecution.

22. It is urged by the learned counsel that inconsistency looms large in the description of the quantity of sample seized as per Ext.P1. In column No.4 of Ext.P1, five numbers of samples each having 250 ml. spirit were described as forwarded to the court. But, the narration regarding the samples in page 3 of Ext.P1 shows that one sample of 250ml. and four samples of 200 ml. were taken from the spot. Undoubtedly, the discrepancy is liable to create a doubt about the quantity of samples taken from the spot and the quantity of sample forwarded to the court. This is a flaw liable to affect the prosecution case materially. The learned counsel has also drawn this Courts attention to Ext.P7 wherein all the listed items were shown as specifically numbered. According to the counsel, Serial Nos.6 to 10 speak about the samples seized as per Ext.P1. In Ext.P1, the entire procedure of seizure was narrated, but nowhere it is stated that items were numbered. This may also create a suspicion about the identity of the properties seized from the spot and those produced before the court. Moreover, in Ext.P6, the seizure mahazar, the samples seized from the spot have been described as marked with alphabets A to V. But, in Ext.P8, the report of the Chemical Examiner, the items have not been described with reference to alphabets. There is no reference in Ext.P8 that the items bear the markings of alphabets as A to V therein. This would also create a doubt as to the identity of the properties produced before the court with the identity of those actually seized from the spot. Therefore, the submission of the learned counsel that the contraband and the samples produced before the court are falsely created ones, assumes relevance.

23. Ext.P9 is the possession certificate marked in the case on hand from the side of the prosecution. It was seen marked through the Village Officer, Vadakkevila, who was examined as PW7. PW7 is not a witness cited by the prosecution. His name does not find a place in the witness list appended with the final report prepared and submitted by the investigating agency. The records available in the case reveal that Ext.P9 was procured by the learned Public Prosecutor during the course of trial from the Police and marked in evidence. Either PW5 or PW6 has no case that any investigation regarding the possession or ownership of the building wherefrom the contraband was seized, was conducted by them. That aspect does not also find a place anywhere in the description in the final report. Then the question comes as to whether the Public Prosecutor has authority to fill up the lacuna by stepping into the shoes of the investigating officer. Indisputably, the investigation is a matter within the realm of the investigating officer. The court is not supposed to intervene in the investigation process and to direct the investigating agency to conduct the investigation in the manner as stated by them. Procuring a document totally unrelated to the investigation process and marking the same in evidence after summoning an official, who is no longer cited as a witness by the prosecution is undoubtedly an exercise, illegal and indisputably, that would be prejudicial to the accused.

24. It is relevant to note that the investigating officer has laid the final report chargesheeting the accused for the offence under Section 55(a) of the Abkari Act. The court below has framed charge only for an offence under Section 8(1) of the Abkari Act. Section 8(1) of the Abkari Act strictly speaks of prohibition of manufacture, import, export, transport, transit, possession, storage, sale etc. of arrack. It does not prohibit manufacture, import, export, transport, transit, possession, storage, sales etc. of rectified spirit. Sub-section (2) is the penal provision. It provides for punishment in respect of contraventions as mentioned in subsection (1) of Section 8. In the case on hand, the accused was charged by the court and was found guilty, convicted and sentenced for keeping rectified spirit in possession without authority. The same is not an offence under Section 8(1). Therefore, the finding of guilt against the accused under Section 8(1) and penalising them under Section 8(2) is against the spirit of the provision itself. It is contended by the learned counsel that the finding of guilt of the accused under Section 8(1) of the Act is totally perverse. Anil Kumar v. State of Kerala [2016(4) KHC 827] is also relied on by the learned counsel to rest his contention. It is held in the case that unless and until there is a case for the prosecution that the contraband seized was arrack, conviction under Section 8(2) of the Abkari Act is not possible. In the case on hand, evidently, the contraband seized and later on, identified by the Chemical Examiner in his analysis being rectified spirit, prosecution under Section 8(1) and imposition of punishment under Section 8(2) is totally unsustainable.

25. The conclusion that possibly be drawn from the discussion hereinabove is that the court below has thoroughly failed to advert to the above aspects while passing the impugned judgment. The court below has not evaluated the evidence of the prosecution in a proper manner. In view of the inconsistencies that loom large in the evidence relied on by the prosecution and the legal flaws, pointed out by the learned counsel as existing, the case alleged by the prosecution against the accused is difficult to sustain and the accused would be entitled to the benefit of that.

In the result, this Criminal Appeal succeeds and stands allowed. The impugned judgment, finding accused Nos.1 and 6 guilty for the offence under Section 8(1) of the Act and convicting and sentencing them for the punishment under Section 8(2) of the Act, vide the impugned judgment will not sustain and is set aside. The bail bonds of accused Nos.1 and 6 are cancelled and they are ordered to be set at liberty forthwith.