P. Ubaid, J.:— The appellant herein is the 1 accused in S.C. 258/2010 of the Court of Session, Palakkad. The accused Nos. 2 and 3 obtained discharge from the trial court. The 1 accused faced trial before the learned Additional Sessions Judge (Adhoc)-III, Palakkad under Section 55(a) of the Kerala Abkari Act (for short “the Act”) on the allegation that at about 1 p.m on 26.1.2007, he was found transporting huge quantity of spirit contained in 18 plastic cans of 35 litres capacity in his Car No. KL-9G-910. The offence was detected by the Sub Inspector of Police, Kozhinjampara. He arrested the accused on the spot and seized the contraband articles including the car as per a mahazar. On the basis of the arrest and seizure, the Sub Inspector registered the crime, and investigation was taken over by the Circle Inspector. After investigation, the Circle Inspector submitted final report in court.

2. The accused appeared before the learned trial Judge and pleaded not guilty to the charge framed against him under Section 55(a) of the Act. The prosecution examined six witnesses and proved Exts.P1 to P9 documents in the trial court. The MO1 to MO18 properties were also identified during trial. Those are said to be the 18 plastic cans allegedly containing spirit, seized from the possession of the accused. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances. The accused did not adduce any evidence in defence.

3. On an appreciation of the evidence, the trial court found the accused guilty. The Police charge, and also the court charge is under Section 55(a) of the Act, on the allegation of the illicit transportation of spirit. The finding of the trial court at the operative portion of the judgment is that the accused was found transporting arrack. Anyway, the conviction is under Section 55(a) of the Act. This is the irresponsible and the casual way in which the case was dealt with. On conviction, the accused was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,00,000/- by judgment dated 11.7.2013. Aggrieved by the judgment of conviction, the accused has come up in appeal.

4. On hearing both sides, and on a perusal of the materials, I find some serious infirmities and irregularities in this case, vitiating the whole prosecution case. In the above circumstances, I feel it not necessary to go to the factual aspects of the detection. Of course, the Sub Inspector and the material witnesses have given evidence proving the arrest of the accused, and the seizure of 18 plastic cans. The crucial question is whether the liquid therein is identified as spirit, as the prosecution would allege.

5. It appears that the contraband articles were produced by the detecting officer before the Assistant Excise Commissioner, as the authorised officer appointed under Section 67B of the Act. Ext.P9 is said to be the inventory report. This is not in fact the inventory prepared by the authorised officer as prescribed under Section 53A of the Act. This is only a copy of the report of the learned Magistrate, who verified the things in the presence of the Assistant Excise Commissioner. The law under Section 53A of the Act is that the authorised officer shall prepare an inventory of the articles, and get it certified as correct by the Magistrate having jurisdiction. If the properties are produced before the authorised officer, it will have to be disposed of, or dealt with by him according to law, as provided under Section 67B of the Act. As the authorised officer, he can pass appropriate orders including confiscation under Section 67B of the Act. Once a property is produced before him for the procedure under Section 67B of the Act, there is no question of the property being again produced in court. The properties seized in this case are 18 plastic cans allegedly containing spirit. All the 18 cans are seen produced in court in this case. It is not known how the cans happened to be produced in court, if the cans were actually produced before the authorised officer for necessary action under Section 67B of the Act. The prosecution has no explanation for this.

6. The inventory prepared by the authorised officer is not seen proved in this case. The law under Section 53A of the Act is that if the authorised officer has prepared an inventory, and got it certified by the Magistrate having jurisdiction along with photograph, the inventory can be accepted in evidence without examining the person who prepared it. In cases where the properties are not produced in court, the inventory will form substantive evidence proving the seizure. In this case, there is an inventory prepared by the Assistant Excise Commissioner, available in the case records, which was not proved in evidence. No value can be attached to the Ext.P9 report which is only a copy of the report of the Magistrate. The report of the Magistrate will not have any independent acceptability. It is only a supporting material for the inventory prepared by the authorised officer. But curiously enough, the inventory as such is not seen marked or proved. Even the inventory available as part of the case records is seen signed by the Circle Inspector. No doubt, the Circle Inspector is not the authorised officer appointed under Section 67B of the Act. Below his signature, the court finds something like a counter signature by the Assistant Excise Commissioner. This is not the way to prepare an inventory. Anyway, I need not discuss much on this aspect because the inventory is not proved in evidence.

7. Of the 18 cans produced in court, 15 were seen empty during trial. Four samples were sent for analysis. Evidence shows that two samples each were taken from two cans. Only in three of the cans, some liquid was found during trial. The Ext.P9 report of the learned Magistrate shows that he had also collected some samples. It is not known how, or for what purpose, or under what authority, he collected samples from the property produced before the authorised officer. The Magistrate had no business at all to collect any sample from the property produced before the authorised officer. Even the authorised officer cannot collect sample at that stage. His function is only to verify the properties produced, and prepare an inventory, and the function of the Magistrate is only to verify the inventory to see that the things are proper and correct. Anyway, 15 out of the 18 cans are empty in this case. It is not known from which can, sample was taken by the Detecting Officer or why he did not take sample from the 18 cans.

8. This Court has settled that the copy of the forwarding note produced in court by the Detecting officer or the Investigating Officer must be proved in evidence, and it must contain the specimen of the seal affixed on the sample. The Ext.P8 forwarding note does not contain the specimen of the seal affixed on the sample. This means that there is nothing to identify the sample collected from the possession of the accused. It is not known from which plastic can, the four samples relating to the chemical report were collected. Thus, on all material aspects, the whole prosecution case is doubtful, and there is no clear and satisfactory material to prove the offence alleged.

9. The way in which the learned Public Prosecutor prosecuted this case deserves comments. The inventory prepared by the authorised officer is not seen proved. It is very much in the case bundle. Instead of proving the inventory, the learned Public Prosecutor got proved a copy of the report of the learned Magistrate. It appears that the court also took it casually. When the prosecution case is that the accused was found transporting spirit, the finding of the court is that he was found transporting arrack. It appears that even the court had no idea as to what exactly is the prosecution case, and the learned Public Prosecutor also did not take care to prosecute the case properly. The prosecution has no explanation as to what happened to the liquid contained in 18 cans produced in court. Even the Ext.P9 report of the Magistrate shows that when he inspected the properties in the presence of the authorised officer, nothing could be seen in 15 plastic cans. If it is true, it is not known what function was discharged by the authorised officer, and what inventory was prepared by him.

10. The original inventory, which contains the signature of the Circle Inspector of Police, and also the Assistant Excise Commissioner, omitted to be proved in evidence, was perused by me, and this inventory shows that all the 18 cans produced before the authorised officer had full quantity of spirit. If so, it is not known what happened to the spirit contained in 15 plastic cans. When the inventory prepared by the Assistant Commissioner of Excise shows that there was full quantity of spirit in all the 18 plastic cans, the report of the Magistrate, who verified the inventory shows otherwise that there was some liquid in three of the cans, and the other 15 were found empty. This is an area, where the whole prosecution case is doubtful and unacceptable.

11. As discussed in the foregoing paragraphs, I find so many suspicious circumstances, and I also find serious lapses on the part of the prosecution. Things were not done by anybody as part of investigation, and the Prosecutor also failed to prosecute the case properly, according to law. The result is that, an accused involved in a case relating to huge quantity of spirit gets an acquittal.

12. In the result, the appeal is allowed. The appellant is found not guilty of the offence under Section 55(a) of the Act, and he is acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C. Accordingly, the conviction and sentence against him in S.C. No. 258/2010 of the court below will stand set aside, and the accused will stand released from prosecution. The amount, if any deposited before the court below as a condition for suspension of sentence will be released to him.