JUDGMENT : 1. The appellant was charge sheeted for an offence punishable under Sections 55(a) and (h) of the Kerala Abkari Act in Crime No.264/2008 of the Nilambur Police Station, which in turn was tried by the Additional Sessions Court (Ad hoc-III), Manjeri in S.C.No.264/2009. 2. The prosecution case is that on 08.05.2008, the appellant was found carrying a plastic Can containing 4½ liters of arrack and he was apprehended by the police. On conclusion of the evidence and after hearing both sides, the learned Sessions Court found the accused guilty and he was convicted and sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.1 lakh. Against the finding of the learned Sessions Court , this appeal is being filed. 3. According to the appellant, in the matter of arrest of the accused, seizure of the contraband articles, sampling of the same etc., none of the mandatory requirements have been complied by the police, and the non-compliance of the statutory requirements make the trial vitiated against the appellant. The contraband articles had reached the court belatedly and no explanation had been offered by the prosecution for the delay in producing the contraband articles before the court. In fact, the official witnesses alone had supported the prosecution case and the Sessions Court ought not to have relied on their evidence so as to convict the appellant. The Sessions Court has not considered the animosity alleged against the detecting officer by the defence. On these grounds, the appellant prays for setting aside the conviction and sentenced passed by the Additional Sessions Court (Ad hoc-III), Manjeri in S.C.No.264/2009 dated 02.01.2010. 4. The prosecution case is that out of the 4 witnesses examined, PW1 is the then Assistant Sub Inspector of police, Nilambur. He was a member of the patrol party under the leadership of PW4, who detected the offence. PW4 is the then Sub Inspector of Police, who was the leader of the said patrol party. On the evening of 08.05.2008, while the police party consisting of PW4 and other police officials including PW1 were patrolling within the limit of Nilambur Police Station in the police jeep. PW4 received reliable information to the effect that somebody has been engaged in the sale of arrack at Thottupoyil-Akampadam amsom. On getting such information, they rushed to the spot along with the investigation kit. PW4 received reliable information to the effect that somebody has been engaged in the sale of arrack at Thottupoyil-Akampadam amsom. On getting such information, they rushed to the spot along with the investigation kit. At about 5.30 p.m., the police party reached at the road at Thottupoyi. Thereupon, they found the accused walking through the road from Kallunda direction to Thottupoyil direction by carrying a plastic Can of 5 litre capacity. On seeing the police party, the accused attempted to escape. Immediately, PW1 stopped the police jeep and stepped down from the jeep and resisted the accused and questioned him. Thereafter, he verified the content of the Can in the presence of the independent witnesses and the accompanying police officials and he convinced that it was country made arrack and that fact has been convinced to the witnesses also. 5. Thereafter, PW4 duly arrested the accused after preparing Ext.P1 arrest memo. He has also prepared Ext.P2 inspection memo. He has also issued Ext.P5 arrest notice to one Ramakrishnan, son of the brother of the appellant relating to the arrest. The evidence of PWs 1 to 4 would further show that PW4 has collected sample from the content of MO1 Can in a 375 ml. capacity bottle, sealed the same and also sealed the Can containing the residue of the arrack, prepared and obtained the signature of the accused and independent witnesses on the said labels and affixed the same on MO1 Can and also on the sample bottle, duly sealed the sample bottles as well as the Can and seized the same after preparing Ext.P3 seizure mahazar. Both the witnesses have also identified the accused as well as the MO1 Can containing arrack and the label affixed by PW4 before the court. PW3 is an independent witness, who was present at the time of the arrest of the accused, seizure of the contraband article from him and also the collection of sample. He has identified his signature in Ext.P3 seizure mahazar and also on the label found affixed on MO1. The oral evidence of PW3 would show that he has been working as a Marketing Executive of Indus Motors and in connection with his employment, he had been proceeding to the Thottupoyil direction by riding his bike and at that time, he found the accused walking by carrying a black plastic Can towards Thottupoyil direction through the public road. The oral evidence of PW3 would show that he has been working as a Marketing Executive of Indus Motors and in connection with his employment, he had been proceeding to the Thottupoyil direction by riding his bike and at that time, he found the accused walking by carrying a black plastic Can towards Thottupoyil direction through the public road. He also found the police party verifying the Can and by seeing the above act of the police party, he stopped the bike. Thereupon, the police party called him and when he reached there, PW4 has directed him to verify the content of the Can. He verified by smelling the same and found that it was arrack. According to PW3, the police party sealed the sample bottle as well as the Can containing the residue and affixed the label after obtaining his signature and the signature of CW7. He has also identified the signature on the label found affixed on MO1 Can and he has also identified the signature of CW7 Biju on the said label. According to him, he has subscribed his signature in Ext.P1 arrest memo also. He has also identified the appellant before the court as the person, who has been arrested by the police party for carrying MO1 Can containing arrack. It is also brought out in evidence through PW4 that he produced the accused along with the contraband article, sample bottle and connected records to the police station and registered Crime No.264/2008 of that police station and prepared Ext.P6 F.I.R. and forwarded the same to the court and also forwarded a copy of the F.I.R. and seizure mahazar to his superior officers. Thereafter, he produced accused along with thondi article, sample and connected records along with Ext.A7 remand application, Ext.P8 thondi list. It is also brought out in evidence that he has prepared Ext.P9 forwarding note and produced before the court requesting to forward the sample for chemical analysis and accordingly the sample was forwarded to the chemical examiners' laboratory and obtained Ext.P10 certificate of chemical examination. PW4 has conducted the investigation and also filed charge sheet before court. 6. Per contra, the defence case is that due to previous enmity, a false case was registered against him. PW4 has conducted the investigation and also filed charge sheet before court. 6. Per contra, the defence case is that due to previous enmity, a false case was registered against him. In fact, the appellant was engaged in ironing of dresses and he has been doing the ironing work by placing his cart at the side of the road in front of the Nilambur Police Station. After PW4 took charge as the Sub Inspector of Police, Nilambur, he directed the appellant to remove the cart used for ironing from that place and also directed him not to do the ironing work at that place. Since the appellant is having no financial capacity to hire a room and to do the ironing work, himself and his family met with starvation. Thereafter, the appellant and the local people approached the Circle Inspector and made a complaint regarding the direction of PW4 and by understanding the plight, the Circle Inspector of Police, Nilambur has allowed him to continue the ironing work at the road in front of the police station. Due to that enmity, PW4 threatened the appellant. 7. On 08.05.2008, the appellant was taken from his residence and a false case was imputed against him. It is further pointed out that the defence has no such case when PW1 and PW4 were in the witness box. The defence has also not even put any suggestion that the appellant is engaged in ironing work by placing his cart at the road in front of the Nilambur Police Station. Even though there was suggestion put to PW4 to the effect that the appellant is engaged in ironing work at the road in front of the Nilambur Police Station. But it has been denied by PW4. The lower court has found that PW1 and PW4 are the responsible Sub Inspector of Police and Assistant Sub Inspector of Police, Nilambur, who detected the offence in discharge of their official duty. Therefore, by invoking presumption under Section 114(e) of the Evidence Act, the prosecution has succeeded in establishing that the appellant has committed the offence, as alleged. The appellant has not adduced any material to rebut the presumption except Ext.D1 contradiction in the 161 statement of PW3, which is not at all very material to rebut the presumption or to disbelieve the prosecution case adduced by PWs 1, 3 and 4. The appellant has not adduced any material to rebut the presumption except Ext.D1 contradiction in the 161 statement of PW3, which is not at all very material to rebut the presumption or to disbelieve the prosecution case adduced by PWs 1, 3 and 4. Even though there was a dispute with regard to the writing of the crime number in Ext.P1 arrest memo, Ext.P2 inspection memo, Ext.P5 arrest notice and also on the label seen affixed on MO1 Can, this has been clarified by PW1 & PW4 by stating that they obtained crime number through telephonic message. 8. Therefore I do not find any ground to disbelieve the evidence of PW1 & PW4. The crucial argument advanced by the learned counsel for the appellant is that PW4, who has detected the offence himself was registered the crime, conducted the investigation and finally laid charge sheet before the court and according to the defence, the same has caused much prejudice to the appellant. 9. In order to establish this fact, he has cited a ruling in Mohanlal v. State of Punjab [ 2018 (3) KLT 852 ] wherein it was held that 'fair investigation which is but the very foundation of a fair trial necessarily postulates that the informant and the investigator must not be the same person. It was further held that the importance of a fair investigation from the point of view of the accused as a guaranteed constitutional right under Article 21 of the Constitution of India, it is considered necessary that the law in this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the Courts in a state of uncertainty and confusion which has to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded'. 10. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded'. 10. Here, PW4, who was the Sub Inspector of Nilambur Police Station has detected the offence and accordingly he has seized the contraband articles and prepared Ext.P1 to P9 and ultimately laid charge sheet before the court. PW4 is named Alavi, who was the then Sub Inspector of Police, Nilambur. On verification of the charge sheet, which was filed on 12.07.2008, it is true that he himself has filed charge sheet before court on 12.07.2008. The offence alleged against the appellant is under Section 55(a) & (h) of the Abkari Act for possessing 4 ½ litres of illicit arrack and the punishment under Section 55(a) of the Abkari Act is up to 10 years. So, it is a very serious nature of offence and the punishment is also very high. 11. Under these circumstances, it is on the part of the prosecution to conduct a fair investigation. In fact, the detecting officer i.e. PW4 has conducted the entire investigation in this case and filed charge sheet against the appellant in violation of the fundamental right as envisaged under Article 21 of the Constitution of India. It was also laid down by the Division Bench of the Apex Court as cited supra that the fair investigation, which is but the very foundation of the fair trial necessarily postulates that the informant and the investigator must not be the same person. So the obligation is on the part of the prosecution to establish the guilt of the appellant beyond reasonable doubt by conducting a fair investigation. In the absence of fair investigation, there can be no fair trial also. 12. Therefore, I find that this case was detected and investigated by the same person. So, the fair investigation and fair trial is vitiated as against the appellant and on this ground, the appellant is entitled to get acquittal as prayed for. In the result, this appeal is allowed. The conviction and sentence imposed against the appellant in S.C.No.264 of 2009 on the files of the Additional Sessions Court 9Adhoc-III), Manjeri is hereby set aside. So, the fair investigation and fair trial is vitiated as against the appellant and on this ground, the appellant is entitled to get acquittal as prayed for. In the result, this appeal is allowed. The conviction and sentence imposed against the appellant in S.C.No.264 of 2009 on the files of the Additional Sessions Court 9Adhoc-III), Manjeri is hereby set aside. The appellant is set at liberty forthwith. The bail bond, if any executed, shall stand cancelled.