JUDGMENT : Mary Joseph, J. 1. These appeals are directed against the judgment dated 15.5.2009 of the Additional District and Sessions Judge (Adhoc), Fast Track Court-I, Pathanamthitta in S.C. No. 162/2005. The accused are the driver and cleaner of the mini lorry bearing Reg. No. KL-3/2340. The allegation against them was that they had transported 53 cans containing 35 litres of spirit in the said vehicle at 7 p.m. on 16.3.2002 through the road near Puthen Kavu temple in front of a house named Ambady. 2. The case of the prosecution in brief is as follows:- On 16.3.2002, at 7 p.m. while CW6, the S.I. Of Police, Thannithodu Police Station was travelling in a car along with his wife and children, a mini lorry bearing Reg. No. KL-3/2340 proceeding against, scratched the car and left without stopping. CW6 chased the mini lorry. The accused left the place after abandoning the mini lorry. The mini lorry was searched. Spirit, weapons and chilly powder were found loaded in the cabin of the mini lorry. The mini lorry and the articles found therein were seized by CW8, who reached the spot then. The vehicle and the articles were taken into custody after preparing a seizure mahazar and brought to the Police Station. Crime No. 103/2002 was registered. Witnesses were questioned and on concluding the investigation, a final report charge-sheeting both the accused for the offences under Sections 8(1) and (2) of the Abkari Act (for short the Act only) was laid before the Judicial First Class Magistrate Court, Adoor. The case was committed by the Magistrate to the court of Additional District and Sessions Judge (Ad-hoc), Fast Track Court-I, Pathanamthitta (for short the court below). 3. On entering appearance by the accused following the service of process upon him, charge was framed. The same was read over and explained. He pleaded not guilty and faced trial. 4. PWs. 1 to 8 were examined by the prosecution. Exts.P1 to P12 and MOs.1 to 4 were got marked in evidence. The accused denied all the incriminating circumstances brought in evidence against him by the prosecution. Those were denied outright by the accused and the specific defences of total innocence and false implication were taken. Grounds having not been made out to enter into an order of acquittal, the accused were called upon to adduce defence evidence. The accused denied all the incriminating circumstances brought in evidence against him by the prosecution. Those were denied outright by the accused and the specific defences of total innocence and false implication were taken. Grounds having not been made out to enter into an order of acquittal, the accused were called upon to adduce defence evidence. Both the accused did not adduce any evidence in defence. 5. The court below raised the points as noted herein-below for consideration:- “1. Whether the accused were transporting spirit in KL.3-2340 Mini Lorry on 16.3.2002 by about 7 p.m. as alleged by the prosecution? 2. Whether there is proper identification of the accused as the persons who were the occupants of the lorry at the time of occurrence? 3. Whether the charge is defective since PW-5 the Assistant Sub-Inspector detected the offence and seized the lorry and spirit? 4. Whether the offence u/s. 8(1) and (2) is made out by the prosecution. If so what should be the sentence to be given?” 6. All the four points were found by the court below in the affirmative. Each of the accused having been found guilty for the offence punishable under Section 8(1) of the Act, they were convicted and sentenced to undergo rigorous imprisonment for four years and fine of Rs. 1,00,000/- under Section 8(2) of the Act. One year rigorous imprisonment was also imposed on each of them as default sentence on their failure to pay the fine amount. 7. The aggrieved accused are now before this Court in the captioned appeals seeking to reverse the judgment of conviction and sentence on the grounds of illegality, impropriety and incorrectness involved therein. The specific grounds raised in the appeal memorandum are to the following effect:- 1. The trial and conviction of the appellants is vitiated by grave illegalities and errors apparent on the face of the record. 2. The evidence was appreciated by the court of Sessions in a perverse manner and therefore, miscarriage of justice was resulted. 3. Independent witnesses examined before the court as PWs. 1 and 2 have not lent proper support to the case of the prosecution, especially when they say that the incident was not witnessed by them and that the seizure mahazar was signed by them at the Police Station. 4. The accused were not arrested from the spot. 3. Independent witnesses examined before the court as PWs. 1 and 2 have not lent proper support to the case of the prosecution, especially when they say that the incident was not witnessed by them and that the seizure mahazar was signed by them at the Police Station. 4. The accused were not arrested from the spot. Even as per the prosecution case, the accused left the place after abandoning the vehicle. Therefore, the finding of the court below that the contraband was seized from their possession without proper identification during investigation is against truth and unbelievable. 5. The long delay for the sample taken from the contraband to reach the court. 6. Detection of the case by an officer not empowered to do so by the provisions of the Act. 8. Sri. Nireesh Mathew advanced arguments on behalf of the accused. The arguments have not only been advanced on the above mentioned grounds, but also on the exorbitance and harshness in the matter of imposition of substantive sentence. Canvassing vehemently on the points, the learned counsel pleaded for a reversal of the finding of guilt of the accused by the court below and letting the accused at liberty. 9. Sri. Nireesh Mathew has invited my attention to Sections 8(1) and (2) of the Act, which for convenient reference, is extracted hereunder. “8(1) Prohibition of manufacture, import, export, transport, transit, possession, storage, sales etc. of arrack.--No person shall manufacture, import export transport, without permit transit possess, store, distribute, bottle or sell arrack in any form. (2) If any person contravenes any provisions of sub-section (1), he shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than one lakh.” 10. The counsel canvassed in vehemence on the strength of the aforesaid provision that the word in usage therein being arrack and not spirit and the contraband seized in the case on hand being spirit, the offence under Section 8(1) would not be attracted against the accused and he is not liable to be punished under Section 8(2) of the Act. 11. As per the allegation of the prosecution, the contraband seized in the case on hand is spirit. Ext.P12 is the Certificate of Chemical Analysis obtained from the Chemical Examiner's Laboratory, Thiruvananthapuram after analysis of the sample drawn from the contraband seized. 11. As per the allegation of the prosecution, the contraband seized in the case on hand is spirit. Ext.P12 is the Certificate of Chemical Analysis obtained from the Chemical Examiner's Laboratory, Thiruvananthapuram after analysis of the sample drawn from the contraband seized. The result of analysis is extracted hereunder:- “All the samples were found to be rectified spirit free from noxious materials injurious to health.” 12. Therefore, as per the allegations of the prosecution and the evidence let in by them, the contraband seized on 16.3.2002 is rectified spirit and not arrack. 13. The words arrack in any form found in Section 8(1) of the Act was an incorporation by Amendment Act 16 of 1997 and the question apposite for consideration contextually is whether arrack in any form takes in rectified spirit also. Arrack and Spirit are defined under sub-sections (6A) and (9) of Section 3 of the Act respectively and are extracted hereunder:- “3. Interpretation.--In this Act, unless there be something repugnant in the subject or context:- xxx xxx xxx “(6A) “Arrack”. --“Arrack” means any potable liquor other than Toddy, Beer, Spirits of Wine, Wine, Indian made spirit, foreign liquor and any medicinal preparation containing alcohol manufactured according to a formula prescribed in the pharma-copoeia approved by the Government of India or the Government of Kerala, or manufactured according to a formula approved by the Government of Kerala in respect of patent and proprietary preparations or approved as a bona-fide medicinal preparation by the Expert Committee appointed under section 68A of the Act.” xxx xxx xxx (9) Spirits. -- “Spirits” means any liquor containing alcohol and obtained by distillation.” 14. Both arrack and spirits being distinctly defined under the Act, there is no scope for any doubt to arise that the words arrack in any form take in spirit. Apart from that, a reading of the definition of arrack in sub-section (6A) of Section 3 is self explanatory, as it excludes Spirits of Wine and Indian made Spirit therefrom. Therefore, there is no scope for a contra argument by the prosecution that Section 8 only prohibits activities like manufacture, import, export, without permit, transit, possession, storage, distribution, bottling or sale of arrack in any form and it does not apply to any liquor other than arrack. 15. The counsel has invited my attention to Anil Kumar vs. State of Kerala, 2016 (4) KHC 827 in support of his argument. 15. The counsel has invited my attention to Anil Kumar vs. State of Kerala, 2016 (4) KHC 827 in support of his argument. In the decision cited, it was held by a Single Bench of this Court that in the absence of a specific case for the prosecution that the contraband seized from the accused is arrack and there is total want of evidence also to establish that, a successful prosecution could not have been maintained for an offence under Section 8(2) of the Act. 16. Therefore, for an offence under Section 8(1) of the Act to be attracted and the punishment under Section 8(2) of the Act to be imposed, there must be engagement of the accused in any of the activities of the nature with reference to arrack as provided thereunder, without authority. Spirit is also a liquor containing alcohol obtained by distillation, but not arrack as meant under sub-section 6A of Section 3. Ext.P12 is the Chemical Examination Report prepared by the Chemical Examiner after analysis of the sample drawn from the contraband forwarded thereto, wherein it was stated as rectified spirit. Therefore, even as per the allegations of the prosecution and as established by the evidence adduced by it, the contraband seized from the spot is nothing but spirit. The accused was charge-sheeted by the prosecution for unauthorised transport of 'spirit' in a mini lorry and not arrack as envisaged under Section 8(1) of the Act. Therefore, the accused in the case on hand ought not to have been charge-sheeted by CW8 for an offence under Section 8(1), liable to be punished under Section 8(2) of the Act. The court below also, ought not to have framed charge against the accused under Section 8(1) and tried him for the said offence liable to be punished under Section 8(2) of the Act. The court below failed to advert to those aspects and accordingly, the accused was charged with, tried, found guilty and convicted for the offence under Section 8(1) of the Act and sentenced with punishment as provided under Section 8(2) of the Act. The court below indisputably has committed an illegality by doing so. The charge framed and the trial held by the court below against the accrued under Section 8(1) of the Act will not legally sustain and therefore, is vitiated. The court below indisputably has committed an illegality by doing so. The charge framed and the trial held by the court below against the accrued under Section 8(1) of the Act will not legally sustain and therefore, is vitiated. The order of conviction and punishment imposed on the accused would not also sustain for the reason. The argument of the learned counsel is liable to be accepted being meritorious. 17. The second argument to which this Court's attention was drawn by Sri. Nireesh Mathew, the learned counsel was that the prosecution case suffers from want of proper identification of the accused either at the time of detection, search and seizure from the spot or during trial in the court by any of its witnesses. According to him, there is total want of evidence for the prosecution regarding identification of the accused during investigation. PW-3 was the first informant and based on his information, Crime No. 103/2002 was registered at Panthalam Police Station. PW3 has stated while lodging the F.I.S. that his car was abraded by a mini lorry, which went ahead without stopping and therefore, he chased the same. PW-3 has stated further that when the minilorry reached near Kurampala Puthenkavu temple, the axle of the vehicle was broken. Therefore, the accused stopped the vehicle there and fled therefrom after abandoning the same. PW-3 has no claim that during questioning, he had stated to the Officer concerned that the accused are identifiable to him. When confronted with the statement given to the investigating officer under Section 161 Cr.P.C. what has been stated by him was that the accused are identifiable by the people gathered there. PW-3 has also stated during cross-examination that the accused are seen for the first time in the court after seizure of the contraband from the spot. PW-7, the investigating Officer when examined in court has spoken that the accused were shown to the witnesses and made to identify by them during the course of investigation. Thus, the versions of PW-7 and PW-3 contradict each other. It turns therefrom that the prosecution witnesses are inconsistent on their versions regarding identification of the accused. The prosecution has no case that any of the officials of the detecting team had previous acquaintance with the accused. Admittedly of PW-3, he had only a glance of the accused from his car while proceeding ahead. It turns therefrom that the prosecution witnesses are inconsistent on their versions regarding identification of the accused. The prosecution has no case that any of the officials of the detecting team had previous acquaintance with the accused. Admittedly of PW-3, he had only a glance of the accused from his car while proceeding ahead. The time was 6 p.m. A prudent man while driving the vehicle would not perceive the identity of the drivers of other vehicles proceeding through the road. In the case on hand, PW-3 specific case itself was that he had no opportunity to see the accused during the course of investigation. According to PW-7, the accused were shown to the witnesses for the purpose of identification during the course of investigation. The witnesses allegedly present at the spot at the relevant time were examined as PW-1 and PW-2 and both of them turned hostile. Therefore, there is total want of reliable evidence to show that the accused, who are charged by the court, tried, convicted and imposed with punishment are the actual culprits, who allegedly had abandoned the vehicle carrying contraband at the spot. The learned counsel canvassed on the basis that the identification of the accused for the first time in the court, without being shown and caused to be identified during investigation, is improper and the identification cannot be relied upon by the prosecution to establish its case. The learned counsel has invited the attention of this Court to the dictum in Roy K.A. vs. State of Kerala, 2012 (2) KLD 185 to support the said contention. It has been held in the case that the identification of the accused for the first time in the witness box without being identified at the spot or during the course of investigation is inadmissible and a conviction on its basis would not sustain. Therefore, the prosecution in the case on hand suffers from want of proper identification of the accused either from the spot or during the course of investigation. The prosecution has relied on the identification of the accused by PW-3 from the court during trial to establish that the accused tried were responsible for the alleged transportation of the contraband without authority. Therefore, in view of the dictum in Roys' case (supra), the said identification undoubtedly suffers from impropriety and is incredible for the reason. The prosecution has relied on the identification of the accused by PW-3 from the court during trial to establish that the accused tried were responsible for the alleged transportation of the contraband without authority. Therefore, in view of the dictum in Roys' case (supra), the said identification undoubtedly suffers from impropriety and is incredible for the reason. The argument being tenable is only liable to be accepted. 18. The offence in the case was detected and the formalities associated with the search, seizure and sampling were conducted by PW-5, the ASI of Police attached to Panthalam Police Station. The crime was also registered by him. It is contended by the learned counsel that PW-5 is an Officer incompetent to conduct the search, seizure and the associated formalities and also to register the crime. The counsel has drawn my attention to sub-section (d) of Section 4 of the Act, which specifically provides that only the officers appointed by the Government by Notification in the Official Gazette Extraordinary are competent to conduct the activities contemplated under Sections 40 to 53 of the Act. The counsel has also invited my attention to a Notification issued by the Government in exercise of the power conferred under Section 4 of the Act. The Notification was issued by the Government in the year 1996 and being relevant in the context, is extracted herein-below. “GOVERNMENT OF KERALA Taxes (G) Department NOTIFICATION G.O.(P) No. 69/96/TD Dated: Thiruvananthapuram, 29th March, 1996 S.R.O. No. 321/96.--In exercise of the powers conferred by section 4 of the Abkari Act,1 of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of an above the rank of Deputy Collectors to be Abkari Officers under their respective jurisdiction for the purposes of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the sections aforesaid. This notification shall come into force with immediate effect. This notification shall come into force with immediate effect. By order of the Governor, N.M. SAMUEL Secretary to Government.” When viewed in the light of the Notification, there is absolutely no scope to entertain a doubt with respect to the incompetency of the ASI of Police, Panthalam Police Station to conduct the search, seizure and sampling of the contraband. Therefore, the argument advanced by the learned counsel that the detection, search, seizure and registration of the crime in the case in question were done by an incompetent officer is meritorious. An act, if performed by a person without authority, will only be illegal. In the case on hand, since the Government in exercise of the power conferred on it under Section 4 of the Act has issued the Notification supra and as per the same, only officers of and above the rank of the Sub Inspector of Police were given the authority to perform the acts specifically made a mention thereof. The A.S.I. Of Police, Pandalam Police Station, being an Officer below the rank of S.I. of Police, is not empowered to do those activities. Accordingly, the search, seizure and other related activities in the case on hand, having been done by an incompetent officer, suffers from illegality. 19. The fourth argument advanced was that the accused, who were arrayed in the case were only the driver and the cleaner of the mini lorry bearing registration No. KL-3/2340. No investigation was seen conducted to identify either the owner of the vehicle or the persons, who had authorised the accused herein to transport the spirit in the vehicle, at the relevant time. PW-7 has spoken in the Box that investigation was conducted on those aspects and the wife of the first accused was ascertained as the owner of the vehicle. But, relevant materials to substantiate the same are not available with the case records as those have not been procured during investigation. The argument advanced by the learned counsel was that the trial is vitiated on account of the failure of the investigating officer to investigate on that line and bring forth evidence in that respect. The flaws of the nature would not be taken as material ones to discard the entire investigation, if it is otherwise perfect and legal. For the reason, I am declined to accept the said argument. 20. The flaws of the nature would not be taken as material ones to discard the entire investigation, if it is otherwise perfect and legal. For the reason, I am declined to accept the said argument. 20. The last and final argument advanced by the learned counsel was that it cannot be said based on the evidence available on record that the samples reached the Chemical Examiner in a tamper proof condition. A glance at the evidence would disclose that the prosecution has no definite say with regard to the affixture of sample seals on the articles seized from the spot and the time when those have been forwarded to the court. According to the counsel, it is disclosed from Ext.P12, the Chemical Examination Report that the samples were sealed with sample seal at the time when those were received at the Chemical Examiners' Laboratory. But, the witnesses of the prosecution have not stated about affixture of sample seal on the articles seized from the spot. In none of the documents allegedly prepared from the spot and marked in evidence also, description is not seen made about affixture of sample seal on the articles seized. There is want of description in that respect in Ext.P1 Seizure Mahazar also. The contention of the learned counsel in the context was that the sample examined by the Chemical Examiner was not the one drawn from the contraband allegedly seized from the spot. The learned counsel has also urged on the inordinate delay occurred for the contraband, samples taken therefrom and other articles, to reach the court. According to the counsel, in view of the inordinate delay and for want of any reasonable explanation for the delay from the officials, the prosecution case is only liable to fail. 21. Attention was also brought to Exts.P5, P6 and P10 to substantiate the arguments advanced. Ext.P5 is the list of property sent to the Magistrate and the items described as forwarded in the list are the samples drawn from the contraband and other articles seized from the spot. Ext.P5 was seen prepared on 17.3.2002 and the sample forwarded along with have been noticed as received by the court on 9.4.2002. Ext.P6 is another list of property sent to the Magistrate and the items forwarded through the list was the can containing the spirit left after drawing samples therefrom. Ext.P6 does not bear a date. Ext.P5 was seen prepared on 17.3.2002 and the sample forwarded along with have been noticed as received by the court on 9.4.2002. Ext.P6 is another list of property sent to the Magistrate and the items forwarded through the list was the can containing the spirit left after drawing samples therefrom. Ext.P6 does not bear a date. But the articles sent through Ext.P6 were received by the court on 10.5.2002. PW-5 has specifically stated in the court that Ext.P1 and the crime and occurrence report registered by him had been forwarded to the court on 18.3.2002. As per the allegation of the prosecution and the evidence available, the samples, the remaining spirit and other articles were seized from the spot on 16.3.2002. As evidenced from the materials, those articles were received at Panthalam Police Station on the day itself. It is true that Ext.P6 does not bear a date. But, it can be seen from Ext.P5 that it was prepared on 17.3.2002. Such being the circumstance, none among PW-5, PW-6, PW-7 or PW-8, who allegedly had been actively participating in the investigation process, has a say with regard to the reason behind the belated forwarding of the articles to the court. In the case on hand, absolutely any explanation is also not forthcoming, in that respect. 22. Ext.P1 does not contain a description about sealing of the contraband. In Ext.P10, forwarding note, in the relevant entry meant for describing the nature of the articles forwarded is found filled as labelled. It is not disclosed from Ext.P10 whether the articles have been forwarded to the court in a sealed form. In that context, the learned counsel has drawn my attention to Krishnan H. vs. State, 2016 (2) KHC 822 to rest his contention that the circumstances of the nature are liable to create a doubt about the identity of the samples seized and those forwarded to the court. The counsel had also contended that in the circumstances of the nature, it will be open to the accused to challenge the identity of the sample allegedly seized from the spot and the one forwarded to the Chemical Examiner's Laboratory and received therein. In the decision cited by the counsel, it is reported in Ext.P12 that the seal on the bottle was intact and found tallied with the sample seal provided. In the decision cited by the counsel, it is reported in Ext.P12 that the seal on the bottle was intact and found tallied with the sample seal provided. But, there is total vacuum in the evidence adduced by the prosecution regarding affixture of sample seal on the articles from the spot by any of the officials. 23. In the case cited also, the sample seal was not affixed in the entry specifically provided for that in the forwarding note. In such a circumstance, the court held that for want of affixture of sample seal in the relevant entry meant for that in the copy of the forwarding note is a sufficient reason for presuming that the sample seal was not affixed in the original of the forwarding note sent to the Chemical Examiner's Laboratory and received by it. The court held that it is only a rebuttable presumption and turns fatal only on the failure of the prosecution to rebut that. The factual situation in the case on hand and the one in the case cited supra being identical, there is absolutely no reason for declining to apply the dictum to the case on hand. 24. For the foregoing reasons, I have no hesitation to hold that the court below is highly erred in finding the accused guilty of the offences under Section 8(1) and convicting and sentencing them under Section 8(2) of the Act by the impugned judgment. The judgment under challenge is only liable to be set aside and accordingly I do so. 25. In the result, both Criminal Appeals succeed. The impugned judgment is reversed. The findings of the Court below on the guilt of the accused for the offences under Section 8(1) and the conviction and imposition of sentence as per Section 8(2) of the Act are set aside. The bail bonds executed by the accused are cancelled forthwith and both of them are set at liberty.