JUDGMENT : MARY JOSEPH, J. 1. This appeal is directed against the judgment dated 1.6.2006 of Additional Sessions Judge for trial of Abkari Cases, Neyyattikara (for short ‘the trial court’). The appellant is the sole accused in the case. He was chargesheeted by the police for the offence punishable under Section 58 of the Kerala Abkari Act (for short ‘the Act’). He was found guilty for the offence, convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1 lakh and in default to undergo rigorous imprisonment for a period of three months. Aggrieved thereby the appeal on hand is preferred. 2. For the sake of convenience, the parties to this appeal are referred to hereinafter as the accused and the complainant. Sri. J. Jayakumar, the learned counsel and Smt. Maya, the learned Public Prosecutor addressed this Court on behalf of the respective parties to the appeal. 3. Before adverting to the contentions of the counsel on behalf of the accused, an understanding of the prosecution case being relevant is stated hereunder: On 2.5.1999 while the Sub Inspector of Police, Nemom Police Station, who was on patrol duty within the limits of Nemom Police Station with other policemen, got reliable information that the accused was engaged in the sale of illicit arrack and therefore, he reached the spot at about 11.45 am as informed by the informant. There he found the appellant with a 10 litre black jerry can containing some liquor in his hand. The Sub Inspector questioned the accused and he has told about his engagement in sale of arrack. Rs.710/- was also recovered from him, which admittedly was proceeds of sale of arrack. The liquor found in the can was smelled and tasted in the presence of independent witnesses gathered there and was identified as arrack. The accused was arrested after complying with all the mandatory formalities. A seizure mahazar and arrest memo were prepared from the spot. The accused along with the properties seized and the seizure mahazar prepared were produced before the Nemom Police Station by the Sub Inspector of Police. At the Police Station, FIR No. 98/1999 was registered. The contraband and the accused were produced before Judicial First Class Magistrate Court I, Neyyattinkara. From there, contraband was forwarded to Chemical Examiner's Laboratory, for analysis and the report was obtained. At the Police Station, FIR No. 98/1999 was registered. The contraband and the accused were produced before Judicial First Class Magistrate Court I, Neyyattinkara. From there, contraband was forwarded to Chemical Examiner's Laboratory, for analysis and the report was obtained. Investigation was conducted by Sub Inspector of Police, Nemon Police Station. On concluding the investigation, a final report was prepared and laid before Judicial First Class Magistrate Court-I, Neyyattinkara. The Magistrate received the final report on file and having convinced that the offence involved is exclusively triable by Court of Sessions, the case was committed to Court of Sessions, Thiruvananthapuram, wherefrom, the case was made over to Assistant Sessions Court, Neyyattinkara for trial and disposal. Summons being served on the accused from the court, he entered appearance through a counsel. After hearing the learned Public Prosecutor and the learned counsel representing the accused, charge was framed by the trial court against the accused for the offence under Section 58 of the Act. It was read over and explained to the accused. He pleaded not guilty to the charge and faced trial. 4. On the side of the prosecution four witnesses were examined as PWs. 1 to PW-4. Six documents and two material objects were marked respectively as Exts.P1 to P6 and MO1 and MO2. On closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with reference to the incriminating circumstances brought in evidence by the prosecution. The accused denied all the questions put to him and maintained the stand that he is innocent. He has further stated that the case is a foisted one against him to wreak vengeance of the police. Both the learned Public Prosecutor and the learned counsel for the defence were heard under Section 232 Cr.P.C. Grounds having not been made out to record an order of acquittal, the accused was called upon to enter on his defence. The accused did not adduce any evidence. The learned Public Prosecutor as well as the learned counsel for the defence were heard elaborately based on the evidence adduced on respective side. The trial court on appreciation of evidence and evaluating the arguments arrived at the judgment under challenge. 5. Sri. The accused did not adduce any evidence. The learned Public Prosecutor as well as the learned counsel for the defence were heard elaborately based on the evidence adduced on respective side. The trial court on appreciation of evidence and evaluating the arguments arrived at the judgment under challenge. 5. Sri. J. Jayakumar, the learned counsel has invited the attention of this Court to the evidence of the witnesses of the prosecution to apprise that the appreciation by the trial court was not in the proper perspective. PW-4 is the Sub Inspector of Police of Nemon Police Station, who detected the alleged offence. According to PW-4 while on patrol duty alongwith the other policemen, a reliable information was transpired to him that a person is in possession of arrack against the provisions of the Act and therefore he proceeded to the spot. He has no case that the information received by him was reduced to writing and forwarded to his superior officer. His sole version was that immediately on receiving the information, he proceeded to reach the spot and at the spot, he found a person carrying a cannas of volume 10 litres and a glass tumbler of 180 ml. capacity. He questioned the person and based on his admission that he is engaged in sale of arrack, he was examined then and there. Currency worth Rs. 710/- was recovered from him which admittedly is the proceeds obtained from sale of arrack. He prepared a seizure mahazar from the spot and caused the independent witnesses available there to sign it. An arrest memo was prepared and the accused was arrested. The accused, the contraband and the tumbler seized from the spot were brought to Nemom Police Station, where Crime No. 98/1999 was registered. Property list and forwarding note were prepared. The accused was produced before Judicial First Class Magistrate Court-I, Neyyattinkara on the succeeding day. The properties seized from the spot, which takes in, the liquor were forwarded to the court only on 5.5.1999. Admittedly, delay of three days was occurred in forwarding the properties and the reason was his work load at the office. 6. PWs. 1 and PW-2 examined before the trial court are none other than one Mr.Babu Rajendran and Mr. Radhakrishnan, who are independent witnesses. Admittedly, delay of three days was occurred in forwarding the properties and the reason was his work load at the office. 6. PWs. 1 and PW-2 examined before the trial court are none other than one Mr.Babu Rajendran and Mr. Radhakrishnan, who are independent witnesses. According to the prosecution, they were present at the spot during detection of the offence and seizure of the liquor and other properties from the accused. The seizure mahazar and arrest memo were prepared from the spot and got marked in evidence respectively as Ext.P1 and Ext.P3. But, PW-1 and PW-2 had categorically denied contents thereof. When confronted with Ext.P1 seizure mahazar, affixture of the signature therein was admitted but, stated to have put those from the Police Station. The witnesses thus turned hostile to the prosecution. He was not controverted with the signature found in Ext.P3 arrest memo. 7. PW-3, the Police Constable who according to the prosecution had accompanied PW-4 to the spot on the fateful day admitted his presence at the spot at the relevant time and deposed to have witnessed all procedures held by PW-4 from the spot. His version is identical to that of PW-4 in all material particulars of the prosecution case. PW-1 and PW-2, the independent witnesses had turned hostile to the prosecution. But, it is relevant that they admitted to have affixed signature in Ext.P1. His hostility to the prosecution case was only with regard to the contents and specifically the place wherefrom the signature was affixed, which according to him was a shop situated near to the place of occurrence. 8. Exts.P1, P2 and P4 are respectively the seizure mahazar, FIR and arrest memo prepared by PW-4. Ext.P4 is the remand report prepared by him while producing the accused before the court. Ext.P5 is the property list. Ext.P6 is the certificate of chemical examination of the contraband forwarded thereto. 9. As rightly contended by the learned counsel, the formalities mandated to be complied with for making the arrest of the accused legal are not observed in the case on hand. It is pertinent to note that the arrest notice does not find a place in the documentary evidence on record. PW-4 has not spoken about preparation of an arrest notice from the spot preceding the arrest and service of the same on a near relative of the accused. It is pertinent to note that the arrest notice does not find a place in the documentary evidence on record. PW-4 has not spoken about preparation of an arrest notice from the spot preceding the arrest and service of the same on a near relative of the accused. Arrest memo was stated as prepared from the spot and got attested by an independent witness namely one Mr. Radhakrishnan, who was none other than PW-2 examined before the court. It is pertinent to note from his version that the signature in the arrest memo marked as Ext.P3 was not made to identify through him. As rightly contended by the learned counsel the column provided in Ext.P3 for mentioning the date and time of arrest are kept blank. Therefore, the date and time of arrest of the accused cannot be ascertained therefrom. It is surprising to note from Ext.P3 that the number of the crime is also made a mention therein and therefore, as contended by the learned counsel a scope for doubt to arise about it's preparation from the spot of seizure, since the registration of crime is an event that will happen after reaching the police station. Therefore, there is every reason to doubt the version of PW-4 that the formalities of arrest have been complied with while arresting the accused from the spot. The benefit of that doubt undoubtedly must go in favour of the accused. 10. It is contended by the learned counsel that PW-4 failed to speak about drawal of sample from the contraband liquor and that is a serious flaw to vitiate the prosecution case. As per the case of the prosecution 8 litres of liquor was seized from the accused. It is clear from Ext.P5, property list, Ext.P6, certificate of chemical examination and Ext.P1, seizure mahazar that the entire quantity of the liquor seized as such was produced before the court and forwarded therefrom to the Chemical Examiner's Laboratory for examination. Therefore, as rightly stated by PW-4 sample was not drawn from the contraband. It is relevant to notice from Ext.P1, the seizure mahazar, Ext.P5, the property list and Ext.P6, the certificate of chemical examination that the entire contraband seized as such was produced for analysis. The prosecution cannot be found fault with for not drawing any sample from the contraband and getting it analysed chemically. It is relevant to notice from Ext.P1, the seizure mahazar, Ext.P5, the property list and Ext.P6, the certificate of chemical examination that the entire contraband seized as such was produced for analysis. The prosecution cannot be found fault with for not drawing any sample from the contraband and getting it analysed chemically. The evidence reveals that the entire quantity of the contraband seized has been forwarded to the Chemical Examiner's Laboratory and Ext.P6 was obtained therefrom certifying that the liquor forwarded contained Ethyl Alcohol of 15.94% by volume. Therefore, the contention of the learned counsel that the case of the prosecution is vitiated for its failure to draw sample from the contraband is devoid of basis and is repelled as untenable. Forwarding of the entire quantity of the liquor seized would only bring transparency to the situation. 11. The further contention advanced by the learned counsel for the accused was that the two independent witnesses cited by the prosecution and examined before the court turned totally un-loyal to the prosecution and the prosecution case suffers adversely for that flaw. The independent witnesses examined before the court are PWs. 1 and PW-2. Truly, they denied to have witnessed the detection, search and seizure of the contraband from the possession of the accused at the spot. But, have admitted affixture of their signatures in Ext.P1 seizure mahazar from elsewhere. The contention of the learned counsel was that since the very same witnesses were found to have signed Ext.P3 which incorporates the number of the crime registered also, the only possibility was that the seizure mahazar and the arrest memo were made to sign by PW-2 from elsewhere at a later point of time as stated by him. According to the learned counsel, these aspects indicate his non-availability there at the spot at the relevant time of detection and seizure. This Court finds it difficult to rule out the possibility pointed out by the learned counsel. 12. The further contention advanced by the learned counsel was that even though it is stated by PW-4 in court that the currency notes were recovered, the same were not marked during trial and therefore, do not form part of evidence on record. Truly, the currency notes were not marked. But there is description in Ext.P1, seizure mahazar and Ext.P5, property list respectively that those were seized from the spot and received by the court. Truly, the currency notes were not marked. But there is description in Ext.P1, seizure mahazar and Ext.P5, property list respectively that those were seized from the spot and received by the court. Ext.P1 seizure mahazar evidences seizure of currency notes worth Rs. 710/- from the person of the accused at the spot and the property list evidences receipt of those by the court. Therefore, I could not find force in the contention of the learned counsel that the non-marking of the currency notes would have a serious impact on the case of the prosecution, liable to vitiate it. 13. The further contention of the learned counsel was based on the delay in forwarding the contraband liquor to the court. According to PW-4, the detection of the offence and the search and seizure were held on 02.05.1999. The specific case of PW-4 was also that the accused was produced before the court on 03.05.1999. But, the properties seized from the spot were evidenced as received by the court only on 05.05.1999. Therefore, the production of the contraband liquor and documents marked in evidence as Ext.P5 and Ext.P1 was delayed by three days. PW-4 has stated his official workload as the reason for the delay. The reason stated by PW-4 undoubtedly is not a sound one. PW-4 being an Abkari Officer empowered to transact is bound to comply with the mandatory procedures prescribed by the relevant provisions of the Act. The Act by sub-section (2) of Section 40 directs him, to produce the accused and the contraband before the court without unnecessary delay. Therefore, he is bound to avoid unnecessary delay while producing seized properties before court and delay if occurs, to explain the reasons for that in a cogent manner. Reasons must not be as stated by PW-4 in the case on hand, but must be sound and justifiable ones. The forwarding of the articles seized in an abkari case without unnecessary delay is a requirement mandated by the Act. Category of officers of Excise and police were also notified by the Government exercising the authority conferred under Section 4 of the Act, as designated to do the work. The Act by Section 40 directs production of the accused and the seized properties before the court without unnecessary delay. Therefore, unavoidable delay is permitted by the provision of the Act itself. The Act by Section 40 directs production of the accused and the seized properties before the court without unnecessary delay. Therefore, unavoidable delay is permitted by the provision of the Act itself. Whether the delay was unavoidable must be explained by the Akari Officer empowered under the Act who was instrumental for the delayed production. It is true, PW-4 has explained the delay, but the reason stated is not a cogent and sound one. PW-4 being a responsible officer ought not to have stated his workload as a reason for the delayed production of properties before the court. 14. Yet another important aspect to be noted while dealing with the contentions was the total want of evidence regarding affixture of sample seal by PW-4 on the contraband articles from the spot. According to PW-4, a forwarding note was prepared and forwarded to the court. But it is relevant to note from the evidence that such a forwarding note does not find a place in the evidence on record. Therefore, it is safe to conclude that what has been stated by PW-4 is against truth and the personal seal was not affixed on the contraband from the spot. 15. Apart from all, it has been noticed that an endorsement was made by Judicial First Class Magistrate Court I, Neyyattinkara in Ext.P5 property list when the same alongwith the properties have been produced before the said court on 05.05.1999 that “Entrust item Nos.1 and 2 with the S.I of Police, Nemon, for keeping the same in safe custody until further orders.” It is pertinent to note therefrom that it was made on 07.05.1999 i.e. after two days of production of the same before the court. The forwarding note if produced and marked in evidence, it will be a proof regarding the affixture of personal seal, since a column is specifically provided for affixture of the seal therein. Since forwarding note is not available in evidence, the inference possible is that it was not prepared. For want of forwarding note the version of PW-4 regarding affixture of personal seal cannot be taken for granted for viewing that personal seal was affixed on the properties at the spot of seizure. 16. As the endorsement reveals, the contraband articles after its production before the court were returned to the Sub Inspector of Police, Nemom for keeping the same in his safe custody until further orders. 16. As the endorsement reveals, the contraband articles after its production before the court were returned to the Sub Inspector of Police, Nemom for keeping the same in his safe custody until further orders. It is the mandate of Section 53 of the Act, that the officer concerned must affix his sample seal on the properties returned and keep the same in his safe custody. On a scrutiny of the evidence, there is ambiguity regarding the person who had kept the contraband in custody after return of the same from the court. Evidence is totally lacking in that regard. PW-4 was the officer, who has been directed by the court vide the endorsement aforesaid to keep the contraband in safe custody. PW-4 failed to state anything about that during examination. It is pertinent to note from the endorsement supra that the contraband has been returned on 07.05.1999. There is absolutely no evidence to show that when the contraband have been produced before the court for the second time for forwarding to the Chemical Examiner's Laboratory. As is clear from the endorsement, the direction was to produce the same only on obtaining orders in that regard from the court. No such order is available in evidence on record. It can be seen from Ext.P6, the certificate of chemical examination that vide letter No. T 23/99 dated 24.03.2000, the articles have been received by the Chemical Examiner at the Chemical Examiner's Laboratory from Judicial First Class Magistrate Court I, Neyyattinkara. It is further revealed that the same was handed over to the laboratory by a Police Constable No. 7540. It is true that the articles have been reported as received by the chemical examiner in a sealed form with seals intact and those tallied with the sample seal provided. But the contraband liquor was evidenced as received after a period of ten months, on 24.03.2000. As already stated, evidence is totally lacking to establish the time at which the contraband was directed to be produced before the court for the second time. The only evidence available was that it was received by the chemical examiner on 24.03.2000 i.e., after about ten months from the date of return of contraband from the court vide the endorsement cited supra. The only evidence available was that it was received by the chemical examiner on 24.03.2000 i.e., after about ten months from the date of return of contraband from the court vide the endorsement cited supra. The prosecution is bound to explain, especially in a case of the nature, since the court that received the same firstly had directed its return and production secondly after obtaining necessary direction from the court in that regard. The prosecution is also bound to state about the custody of the contraband by a responsible officer for the period from 07.05.1999 till 24.03.2000 to ensure that it was in safe custody during that period, to rule out chances of tampering. Absolutely no evidence is forthcoming in that regard. The delay undoubtedly is inordinate, which the prosecution is bound to explain by cogent reasons. For want of proper explanation from the prosecution the trial, is vitiated and it suffers. 17. For the foregoing reasons, this Court is justified to hold that the prosecution has thoroughly failed to establish its case beyond reasonable doubt. The court below, undoubtedly has committed a grave error while appreciating the evidence of the prosecution on record and arriving at the finding of guilt of the accused by the impugned judgment. The judgment being tainted with illegality, impropriety and infirmity, is liable to be interfered with. 18. In the result, this Crl. Appeal stands allowed. The impugned judgment is reversed. The accused is found not guilty for the offence under Section 58 of the Act. The bail bond is cancelled and the accused is set at liberty.