JUDGMENT : 1. This Criminal Appeal is filed challenging the conviction under Section 55(a) of the Abkari Act. The short question raised in this appeal is that when a detection and seizure was made by an Excise Preventive Officer and when the crime was registered at the Excise Office in the absence of an Abkari Inspector by the detecting officer himself in the Excise Office, whether he is bound to report the matter as required under Section 38 of the Abkari Act to any other superior officers. 2. The facts necessary for consideration of this appeal is as follows: On 17.7.2000 at 4 p.m the appellant/accused was found in possession of 30 packets each containing 100 ml. of arrack at Bandadka, Kannadithode public road. The case of the prosecution is that it was imported from the State of Karnataka. The Preventive Officer found the appellant/accused with a bag and seized the bag carried by him and on inspection it was found that it contained 30 packets of arrack. The contraband was seized, he was arrested, sample lifted and a mahazar was prepared. He was taken to the Excise Range office at Bandadka and as the Excise Inspector was on leave he himself registered the crime, property list was prepared, forwarding note was also prepared and on the next day accused was produced before the court. The investigation was conducted by the Excise Inspector and a charge was filed. Prosecution altogether examined 5 witnesses. Exts.P1 to P5 were also marked. MOs 1 to 3 were identified. After appreciating the evidence, the court below convicted the accused and sentenced him to undergo rigorous imprisonment for a period of two months and to pay a fine of Rs.1 lakh with default rigorous imprisonment for one month. 3. I heard the learned counsel appearing for the appellant as well as the learned Public Prosecutor. 4. PW1 deposed before the court that on 17.7.2000 he was the Preventive Officer attached to Excise Range office, Badiadukka. On that day, while he was conducting patrolling and when reached at the place namely Kannadithod, they saw the accused with a bag. In the presence of two independent witnesses, the bag was examined and found that it contained 30 packets of arrack manufactured at Karnataka State. He was arrested, articles were seized, and 300 ml. of sample was lifted. The witness marked the seizure mahazar as Ext.P1. In the presence of two independent witnesses, the bag was examined and found that it contained 30 packets of arrack manufactured at Karnataka State. He was arrested, articles were seized, and 300 ml. of sample was lifted. The witness marked the seizure mahazar as Ext.P1. His further evidence is that the contraband as well as the accused were brought to the office at 6 pm and crime No.16/2000 was registered. The said occurrence report was marked as Ext.P2. The categoric evidence of the witness was that on that day concerned Inspector was on leave and on the next day accused as well as the contraband were produced before the court. The property list was marked as Ext.P3. The forwarding note to send the sample for analysis was also filed and the copy of the same was marked as Ext.P4. The analysis report was marked as Ext.P5. 5. I also perused the evidence of PW5. As per the evidence of PW5, it can be seen that on 28.11.2000 he was the Excise Range Inspector at Badiadukka and his further evidence was that he started the investigation in this crime. He inspected the place of incident and witnesses were questioned and recorded their statements. Thus, what comes out is that the detection was on 17.7.2000 and PW5, the investigating officer started the investigation in this case only on 28.11.2000. Section 38 of the Abkari Act states as follows: “38. Offence to be reported, etc.- Every Officer of Government, other than an Abkari Officer, shall be bound to give immediate information to an Abkari Officer, and every Abkari officer shall be bound to give immediate information either to his immediate official superior or to an Abkari Inspector, of all breaches of any of the provisions of this Act which may come to his knowledge; and all such officers shall be bound to take all reasonable measures in their power to prevent the commission of any such breaches which they may know or have reason to believe are about or likely to be committed.” Thus, it can be seen that when a crime was registered basing on a breach of the provisions of Abakri Act, every Abkari Officer shall be bound to give immediate information either to his immediate official superior or to an Abkari Inspector. Admittedly on the date of arrest there was no Excise Inspector at the Excise Range Office. Admittedly on the date of arrest there was no Excise Inspector at the Excise Range Office. When there was no Excise Inspector present, the corollary is that there was no Abkari Inspector. This aspect is dealt on the later part of this judgment. It is categorically stated that he was on leave and the Excise Inspector examined before the court deposed that he took over the investigation only on 28.11.2000. There is a gap of about 4 months. If there was any information given as required under Section 38 of the Abakri Act, it should be proved by positive evidence. When there was no material produced by the prosecution to show that there was compliance on this aspect as required under Section 38 of the Abkari Act, it is fatal to the prosecution especially when PW5 who was the investigating officer got a case that accused was arrested from a pathway whereas the case of PWs 1 and 2 was that he was arrested from a road area. This aspect was considered by the trial court and observed that as the trial took place after a long period, it may be a mere mistake. But when the detection of a crime was not reported to the officer as contemplated under Section 38 of the Act, it will be fatal to the prosecution. It is to be remembered that in this case the detection was not by an Excise Inspector but by an abkari officer. An Abkari officer inferior to Abkari Inspector is bound to act in accordance with Section 38 of Abkari Act. At this juncture, it is also relevant to note the definition of an Abkari Inspector. As per Section 3(6) of the Abkari Act. An Abkari Inspector is defined as under: “Abkari Inspector” means an officer appointed under Section 4, clause (d). Whereas, as per Section 3 (2) of the Abkari Act, an Abkari Officer is defined as follows: Abkari Officer:- “Abkari Officer” means the Commissioner of Excise, or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5. As per Section 4, clause (d) he is an officer to take action under Sections 40 to 53 of the Abkari Act. As per the notification of Government of Kerala, SRO 234/1967, the powers under Sections 40 to 52 was not vested with a Preventive Officer. As per Section 4, clause (d) he is an officer to take action under Sections 40 to 53 of the Abkari Act. As per the notification of Government of Kerala, SRO 234/1967, the powers under Sections 40 to 52 was not vested with a Preventive Officer. Those powers are only vested with officers of the Excise Department not below the rank of Excise Inspectors. Thus what comes out is that detecting officer (PW1) being only an Abkari Officer and not being an Abkari Inspector, he was bound to inform the Excise Inspector who will be also an Abkari Inspector. If the Abkari Inspector was not available in the office, PW1 was bound to inform his available superior officer. It can be seen that Section 38 of the Abkari Act is incorporated in the Statute as a precaution against misuse of provisions. 6. Thus, the requirement under Section 38 of the Abkari Act that on detection of every breach of the provisions of Abkari Act, an Abkari Officer shall give immediate information either to his immediate official superior or to an Abkari Inspector is mandatory in nature. In this case there was violation of this mandatory requirement or at least there was no evidence to show that the said requirement was fulfilled. Hence, this appeal is allowed setting aside the conviction and sentence imposed against the appellant. The bail bond, if any, executed by the appellant is cancelled and he is set at liberty.