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2022 DIGILAW 953 (KER)

K. Umesh S/o. Krishnan v. State Of Kerala

2022-11-08

ALEXANDER THOMAS, SOPHY THOMAS

body2022
JUDGMENT : Alexander Thomas, J. The aforecaptioned appeal is filed by the sole accused in the Sessions Case, SC No.691/2012, on the file of the Third Additional Sessions Judge, Kasaragod, whereby the appellant/accused has been convicted for the offence under Sec.55(a) of the Kerala Abkari Act and he has been sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.1,00,000/-(Rupees One lakh only) and in default thereof to undergo rigorous imprisonment for a further period of 6 months. The appeal has come up before us, on an order of reference rendered on 15.07.2022, by the learned Single Judge, whereby the correctness of the dictum laid down by a learned Single Judge of this Court, in the case in para No.6 of the decision in Easwaran v. State of Kerala [ 2022 (3) KHC 44 ], in para No.6 thereof, has been doubted and has, thus, been referred to this Division Bench for an authoritative pronouncement. 2. One of the main contentions raised by the appellant herein is that, in view of the dictum laid down by the learned Single Judge, in para No.6 of the decision in Easwaran’s case supra [ 2022 (3) KHC 44 ], an officer of the rank of preventive officer of the Excise department is not empowered to act as Abkari Inspector and, therefore, the conviction rendered in this case is liable to be set aside, as it was found that PW1 therein (preventive officer) lacked authority to conduct search, seizure and sealing of the contraband and for registration of the crime, etc. Whereas, in the present case, the learned Single Judge has doubted the correctness of the said dictum laid down in para No.6 of Easwaran’s case supra [ 2022 (3) KHC 44 ], by referring to the contents of the statutory notification as per SRO No.361/2009, published in the Kerala Gazette dated 08.05.2009, issued as per GO(P) No.420/2009/TD dated 08.05.2009, as Clause 14 of the said SRO dated 08.05.2009, explicitly authorises preventive officers of the Excise Department on duty within the Kerala State to be Abkari Officers, in relation to the functions assigned to them, by virtue of their respective post, or designation, for the purposes of Secs. 31, 32, 34, 35, 38, 39 & 53 of the Abkari Act and to exercise all the powers conferred and to perform all duties assigned on Abkari Officers under the aforesaid sections. Further, proviso to the said SRO dated 08.05.2009 also stipulates that, with reference to Secs.31 & 34 of the Kearla Abkari Act, there shall be no limit of jurisdiction within the State of Kerala for the Abkari and other Department officers, named therein, but all persons arrested and all seizures made thereunder shall, without delay, be made over to the Excise Officers possessing local jurisdiction, etc. Hence, the learned Single Judge, as per the above reference order, has held that the view taken by the learned Single Judge in Easwaran’s case supra [ 2022 (3) KHC 44 ], needs reconsideration by a Division Bench. In view of the abovesaid reference, we now have to answer not only the issue referred to us but also dispose of the main matter in the criminal appeal. 3. The appellant has been implicated as the sole accused in Crime No.14/11 of Hosdurg Excise Range Office, registered on 25.02.2011, as per Ext.P5 crime and occurrence report, for the offences punishable under Secs. 8(1) & 8(2) of the Kerala Abkari Act. The Prosecution case is to the effect that, while PW1 Preventive Officer, Hosdurg Excise Range, and his party was on patrol duty and, on reaching the place called Kottakkunnu in Pallikkara village, on 25.02.2011 at about 2 p.m., the accused was found carrying five litres of arrack in a plastic can and on seeing the Excise party, the accused got perplexed and due to suspicion, he was restrained and the ‘cannas/can’ was inspected and it was found that he was carrying five litres of country made arrack in that plastic can. As mentioned above, the Sessions court, as per the impugned judgment, rendered on 23.12.2013, has convicted the accused, for the offence punishable as per Sec.55(a) of the Kerala Abkari Act and sentenced him as aforesaid. 4. Heard Sri.T.Madhu, learned counsel appearing for the appellant/accused and Sri.P.Narayanan, learned Additional State Prosecutor, appearing for the respondent-State. 5. In this case, PW4 Assistant Excise Inspector, Hosdurg Excise Range, has completed the investigation and has filed final report before the Judicial First Class Magistrate Court-II, Hosdurg, whereby the appellant has been charge sheeted for offences punishable under Secs.8(1) & 8(2) of the Kerala Abkari Act. 5. In this case, PW4 Assistant Excise Inspector, Hosdurg Excise Range, has completed the investigation and has filed final report before the Judicial First Class Magistrate Court-II, Hosdurg, whereby the appellant has been charge sheeted for offences punishable under Secs.8(1) & 8(2) of the Kerala Abkari Act. The Judicial First Class Magistrate Court-II, Hosdurg, Kasargod district, has initiated Committal Proceedings as CP No.167/2011 and has later committed the case to the Sessions court, Kasargod, wherein it has been registered as Sessions Case, SC No.691/2012, on the file of the Third Additional Sessions Court, Kasargod. The Sessions court had framed charges against the accused for the offence punishable under Sec.55(a) of the Kerala Abkari Act. The appellant had pleaded not guilty to the charge read over to him and claimed to be tried. In the Sessions trial, the prosecution has examined four witnesses viz., PW1 to PW4 and documents as per Exts.P1 to P12 were marked. PW1 is the preventive officer of Hosdurg Excise Range, who detected the offence and he has arrested the accused, as per Ext.P1 arrest memo and intimation was conveyed to the wife of the accused, regarding his arrest. Ext.P2 is the arrest intimation. PW1 has also collected the sample in question. Ext.P3 is the specimen of the sample sealed and Ext.P4 is the Seizure Mahazar. Thereafter, PW1 has taken the accused and the articles to the Excise Range Office and he has registered Ext.P5 Crime and Occurrence report as CR No.14/11 of Hosdurg Excise Range on 25.02.2011. Further, according to him, he has produced the accused, case records and samples before the court. He has also prepared Ext.P6 property list. Ext.P7 forwarding note and Ext.P8 inventory report. Ext.P9 is the photograph of the property. 6. PW2 is the preventive officer, who has accompanied PW1, who is said to be a witness to the arrest of the accused, taking of sample and a witness to Ext.P4 Seizure Mahazar. PW3 is said to be an independent witness, examined by the prosecution to prove the occurrence and seizure of the contraband from the accused, as per Ext.P4 Seizure Mahazar. PW3 has turned hostile. 7. PW4 is the Assistant Excise Inspector, who conducted the investigation and laid the final report/charge sheet. Ext.P10 is the Scene Mahazar, marked through PW4. Ext.P11 & Ext.P12 are the site plan and chemical analysis report, respectively. 8. PW3 has turned hostile. 7. PW4 is the Assistant Excise Inspector, who conducted the investigation and laid the final report/charge sheet. Ext.P10 is the Scene Mahazar, marked through PW4. Ext.P11 & Ext.P12 are the site plan and chemical analysis report, respectively. 8. After completion of evidence, on the side of the prosecution, the accused was questioned under Sec.313(1)(b) of the Cr.P.C. The accused then had denied the incriminating circumstances brought out against him in the prosecution case. The accused has not adduced any defence evidence. It is thereafter that, the Sessions court has convicted and sentenced the accused as mentioned above, and he has now preferred the instant criminal appeal. 9. The appellant has essentially raised three contentions. Contention (A): The first contention of the appellant/accused is that, indisputably, the detection of the offence, arrest of the accused, seizure of the contraband, preparation of the seizure mahazar and property list, collection of samples, etc., have all been done by PW1, who is only an officer of the rank of preventive officer. Hence, it is urged by the appellant that, in view of the dictum laid down by the learned Single Judge, in para No.6 of the decision in Easwaran’s case supra [ 2022 (3) KHC 44 = 2022 (3) KLT 37 ], the crucial steps regarding detection of the offence, arrest of the accused, seizure of the contraband, preparation of seizure mahazar and property list, collection of samples, etc., are all vitiated, as the same has been done by PW1 without authority and that in such a case, the conviction is liable for interdiction. It will be pertinent to refer to the contents of para No.6 of the decision of the learned Single Judge of this Court in Easwaran’s case supra [ 2022 (3) KHC 44 ], which reads as follows:- “6. PW1 is only a preventive officer who is not an officer empowered to do any of the acts spoken to have done by him. He was only in charge of Excise Inspector, Excise Range Office, Peermade. As per Section 4 of the Act, the Government of Kerala is empowered to issue a notification to appoint officers who are authorised to act as Abkari Inspector. He was only in charge of Excise Inspector, Excise Range Office, Peermade. As per Section 4 of the Act, the Government of Kerala is empowered to issue a notification to appoint officers who are authorised to act as Abkari Inspector. In exercise of the power under Section 4 of the Act S.R.O. 321/96 was issued by the Government which is extracted hereunder: “S.R.O.No.321/96.-In exercise of the powers conferred by section 4 of the Abkari Act, I 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 and 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. [G.O.(P) No.69/96/TD dt.29-3-1996].” Therefore, a preventive officer is not appointed by the Government to act as an Abkari Inspector. Therefore, without any authority that PW1 proceeded to the spot and conducted the search, seizure and sealing of the contraband. Without any authority that the crime was also registered by him. He was only holding the charge of the Excise Range Officer on the alleged day. Therefore, all the formalities performed by PW1, following receipt of information suffers for those being performed by an officer, not authorised by the provisions of the Act to do accordingly. Something done without authority can only be taken to have not done. The alleged detection, search, seizure, sampling, sealing, registration of crime and other associated formalities being performed without authority are illegal.” 10. It may be pertinent to refer to some of the relevant provisions of the Abkari Act. Sec.3(2) of the Abkari Act defines 'Abkari Officer' as follows: ""Abkari Officer" means the Commissioner of Excise, or any officer or other person lawfully appointed or invested with powers under Section 4 or 5." 11. Sec.3(6) defines 'Abkari Inspector' as follows:- ""Abkari Inspector" means an officer appointed under Section 4, clause (d)." 12. Sec.3(2) of the Abkari Act defines 'Abkari Officer' as follows: ""Abkari Officer" means the Commissioner of Excise, or any officer or other person lawfully appointed or invested with powers under Section 4 or 5." 11. Sec.3(6) defines 'Abkari Inspector' as follows:- ""Abkari Inspector" means an officer appointed under Section 4, clause (d)." 12. Sec.3(21A) defines 'Police Station' as follows:- ""Police Station" includes any place which the Government may, by notification, declare to be a Police Station for the purposes of this Act." 13. Sec.4 of the Act provides as follows:- ''4. The Government may, by notification in the Gazette:- (a) The Government may appoint an officer to control the administration of the Abkari Department.-Appoint an officer, who shall be styled the Commissioner of Excise and who shall, subject to the general control of the Government, have Control of the administration of the Abkari Department and of the collection of the Abkari Revenue or of both; (b) May appoint any person other than the Commissioner to perform all or any of his duties.-Appoint any person other than the Commissioner of Excise to exercise all or any of the powers and to perform all or any of the duties of the Commissioner of Excise, subject to the control of the Government; (c) May withdraw Abkari powers from commissioner or other officer appointed under clause (a) or clause (b).- Withdraw from the Commissioner or other officer appointed under clause (a) or clause (b) any or all of his powers in respect of the Abkari Revenue; (d) May appoint officer to take action under Sections 40 to 53.-Appoint officers to perform the acts and duties mentioned in Sections 40 to 53 inclusive of this Act; (e) And subordinate officers.-Appoint subordinate officers of such classes and with such designations, powers and duties under this Act as the Government may think fit; (f) May appoint any Officer of Government or persons to act as above.-Order that all or any of the powers and duties assigned to any officers under clauses (d) and (e) of this section shall be exercised and performed by any Officer of Government or any person. (g) Delegate to any Abkari Officer all or any of their powers under this Act;" 14. Clause (d) of Sec.4 empowers the Government to appoint officers to perform the acts and duties mentioned in Secs.40 to 53 of the Act. (g) Delegate to any Abkari Officer all or any of their powers under this Act;" 14. Clause (d) of Sec.4 empowers the Government to appoint officers to perform the acts and duties mentioned in Secs.40 to 53 of the Act. Clause (e) of Sec.4 empowers the Government to Appoint subordinate officers of such classes and with such designations, powers and duties under the Act, as the Government may think fit. Sec.(f) of Sec.4 empowers the Government to order that all or any of the powers and duties assigned to any officers under clauses (d) & (e) supra shall be exercised and performed by any Officer of Government or any person. 15. Secs.50 & 50A of the Act, as it stands now, have been introduced by substitution as per Act 16 of 1997, made effective from 03.06.1997, and thereby the previous provisions of Sec.50, as it stood then, has been substituted. Sec.50 0f the provisions, as it stood prior to the abovesaid amendment, envisage that report of Abkari Inspector to be filed, upon receipt of which the competent Magistrate was to inquire into such offence and that the accused in the like manner, as if complaint had been made before him, as prescribed in the Cr.P.C., etc. Whereas, after the amendment made effective from 03.06.1997, Secs.50 & 50A reads as follows:- “50. Report of Abkari Officer gives jurisdiction to a competent Magistrate.-(1) Every investigation into the offence under this Act shall be completed without unnecessary delay. (2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-section (2) of section 173 of Code of Criminal Procedure, 1973 (Central Act 2 of 1974). 50A. Procedure to be adopted on receipt of report.--Upon receipt of a final report from the Abkari Officer, the Magistrate shall inquire into such offence and commit to Court of Session if the offence is exclusively triable by Court of Session or try the person accused thereof in like manner as if a case is instituted upon a police report as provided in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).” 16. It can be seen that after the amendment, made effective from 03.06.1997, Sec.50(2) stipulates that, as soon as investigation into the offences under this Act is completed, the Abkari Officer is competent to forward to a Magistrate, a report in terms of Sec.173(2) of the Code of Criminal Procedure. Sec.50A stipulates that, upon receipt of the final report from the Abkari Officer, the Magistrate shall inquire into such offence and commit to the Court of Session, if the offence is exclusively triable by a Court of Session or try the person accused thereof, in like manner, as if a case is instituted upon a police report, as provided in the Cr.P.C. 17. Sec.30A has been introduced as per an amendment as per Act 3 of 2010, made effective from 07.12.2009. Sec.30A reads as follows:- “30A. Abkari officers to have similar powers of police officers for the purpose of investigation of offences.--For the purpose of investigation of offences under this Act, the abkari officers shall have the same powers of investigation which the police officers have under the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).” 18. So, it can be seen that on and with effect from 07.12.2009, Abkari officers, (as defined as per Sec.3(2)) shall have the same powers of investigation which police officers have under the Cr.P.C.” 19. Now, it may be pertinent to refer to the three statutory notifications, which are relevant for the present purpose. SRO No.234/1967 has been issued as per No.G.O.M.S.356/67/Rev. published in K.G.Ex.No.152 dt.10-8-1967. The SRO 234/1967 has been issued in excise of the powers conferred under Sec.4 of the Abakari Act and all other enabling powers. Clauses 8, 10 & 12 of SRO No.234/1967 reads as follows:- "Officers and their powers and duties (1) xxx xxx xxx Local Jurisdiction (2) xxx xxx xxx 8 All officers of the Excise Department not below the rank of Excise Inspectors—to perform the acts and duties mentioned in Sections 40 to 53 inclusive of the Act. Within the areas for which they are appointed 9. xxx xxx xxx xxx xxx xxx 10. Within the areas for which they are appointed 9. xxx xxx xxx xxx xxx xxx 10. Circle Inspectors of Excise, Excise Inspectors attached to the Circles and Excise Inspectors in charge of Ranges-to be Abkari Officers under their respective denominations for the purposes of Sections 31, 32, 34, 35, 38, 39, 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. Within their respective jurisdiction 11. xxx xxx xxx xxx xxx xxx 12. Preventive Officers of the Excise Department on duty within the Kerala State- to be Abkari Officers under their respective denominations for the purposes of Section 31, 32, 34, 35, 38, 39, 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." Within their respective jurisdiction Proviso to SRO No.234/1967 reads as follows:- “Provided that with reference to Sections 31 & 34 of the Act, there shall be no limit of jurisdiction within the Kerala State for the Abkari and other Department Officers named therein; but all persons arrested and all seizures made thereunder shall, without delay, be made over to the Excise Officer possessing local jurisdiction.” 20. SRO No.321/1996 has been issued as per G.O.(P) No.69/96/TD dated 29.03.1996, published in Kerala Gazette dated 29.09.1996 and the same reads as follows:- “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 and 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, Sd/- N.M. SAMUEL, Secretary to Government.” (It may be noted that it is only the abovesaid SRO No.321/1996, that has been noted in para No.6 of Easwaran’s case supra [ 2022 (3) KHC 44 ]). A reading of SRO No.321/1996 will make it clear that the Government has, thereby, appointed 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 and above the rank of Deputy Collectors to be Abkari Officers under their respective jurisdiction for the purposes of the specific sections of the Act mentioned therein. 21. The third notification to be taken into account is SRO No.361/2009, issued as per GO(P)No.420/2009/TD dated 08.05.2009, published in Kerala Gazette dated 08.05.2009. A reading of SRO No.361/2009 would make it clear that it has been issued by the Government in exercise of the powers conferred under Section 4 of the Abkari Act and of all other enabling powers and in supersession of the previous notification issued as per SRO No.234/1967 supra. Clauses 10, 12 & 14 of SRO No.361/2009 provide as follows:- "Officers and their powers and duties Local Jurisdiction (1) (2) xxx xxx xxx xxx xxx xxx 10. All officers of the Excise Department not below the rank of Assistant Excise Inspectors—to perform the acts and duties mentioned in Sections 40 to 53 both inclusive of the Act. Within the areas for which they are appointed 9. xxx xxx xxx xxx xxx xxx 10. xxx xxx xxx xxx xxx xxx 11. xxx xxx xxx xxx xxx xxx 12. Assistant Excise Commissioner (Enforcement), Assistant Excise Commissioner (Excise Intelligence and Investigation Bureau), Circle Inspector of Excise, Excise Inspectors attached to the Excise Circle Office, Excise Inspectors incharge of Ranges, Excise Inspector of Excise Enforcement and Anti Narcotic Special Squad, Excise Inspectors (Excise Intelligence and Investigation Bureau), Assistant Excise Inspectors attached to Ranges —To be Abkari Officers in relation to the functions assigned to them by virtue of their respective post or designation, for the purpose of sections 31, 32, 34, 35, 38, 39 and 52 of the Act and to exercise all the powers conferred and to perform all the duties assigned on Abkari Officers under the sections aforesaid. Within their respective jurisdiction 13. xxx xxx xxx xxx xxx xxx 14. Preventive Officers of the Excise Department on duty within the Kerala State- to be Abkari Officers in relation to the functions assigned to them by virtue of their respective post or designation, for the purposes of Section 31, 32, 34, 35, 38, 39 and 53 of the Act and to exercise all the powers conferred and to perform all the duties assigned on Abkari Officers under the sections aforesaid." Within their respective jurisdiction 22. Clause 12 of SRO No.234/1967 & Clause 14 of SRO No.361/2009 empowers preventive officers of Excise department to exercise the powers in relation to Secs.31, 32, 34, 35, 38, 39 & 53 of the Act. Sec.31 empowers the Commissioner or any Abkari Officer not below such rank, as may be specified by the Government in that regard or any police officer not below the rank of Sub Inspector of Police or a Police Station Officer, to enter and search any place and seize anything found therein, which he has reason to believe to be liable to confiscation under this Act, and may detain, search and arrest any person found in such place whom he has reason to believe to be guilty of any offence under this Act. Sec.32 empowers the Commissioner or any Abkari Officer, not below the rank of Preventive Officer, etc., to inspect, at any time, any place of manufacture or storage of liquor/intoxicating drug/toddy, etc., and may enter and inspect, at any time, any place in which any liquor or intoxicating drug is kept for sale by any licensed person, etc. Sec.34 authorises any Abkari Officer to arrest without warrant in any public thoroughfare or open place, other than a dwelling house, any person found committing an offence punishable under this Act and in any such thoroughfare or public place, may seize and detain any liquor or intoxicating drug, any materials, utensils, receptacles, package, conveyance, etc., etc., which he has reason to believe to be liable to confiscation under this Act. Sec.35 empowers arrest of persons refusing to give name or giving false name. Sec.38 deals with offences to be reported. Sec.39 envisages that landholders and others are to give information. Sec.35 empowers arrest of persons refusing to give name or giving false name. Sec.38 deals with offences to be reported. Sec.39 envisages that landholders and others are to give information. Sec.53 deals with police to take charge of articles seized and keep it in safe custody, pending orders of the Magistrate or an Abkari Inspector and that the Police shall allow any Abkari Officer, who may accompany such articles to the police station, or who may be deputed for the purpose by his superior officer, to affix his seal to such articles and to take samples of and from them, etc. 23. We have already mentioned about the substitution of the old provision contained in Sec.50. As per amendment introduced with effect from 03.06.1997, the present Sec.50 & 50A has been substituted. Sec.50(2) empowers an Abkari Officer (as defined in Sec.3(2)) to forward to a Magistrate, empowered to take cognizance of an offence on a police report, a report in accordance with Sec.173(2) of the Cr.P.C. After filing of such a final report, Sec.50A further stipulates that, on receipt of a final report from the Abkari Officer, the Magistrate shall inquire into such offence and commit it to Court of Session, if the offence is exclusively triable by the Court of Session or try the accused thereof, in the like manner, as if a case is instituted upon a police report as provided in the Cr.P.C. 24. So, it can be seen that Sec.3(2) defines Abkari Officer to mean Commissioner of Excise or any officer or any other person, lawfully appointed or invested with such powers under Sec.4 or Sec.5. Sec.3(6) defines an Abkari Officer to mean an officer appointed under Clause (d) of Sec.4. Sec.4 gives power to the Government to appoint officers to exercise powers and duties under the Act. Sec.5 deals with the power of the Government to make rules, prescribing the powers and duties to be exercised by the officers of the department under the Act. So, a cumulative reading of Secs.3(2), 3(6), 4 & 5 would lead to a situation that all officers appointed under Secs. 4 & 5, more particularly Sec.4, are “Abkari Officers”, to exercise the powers and functions in relation to the enumerated sections as per Secs.31, 32, 34, 35, 38, 39 & 53 of the Act. So, a cumulative reading of Secs.3(2), 3(6), 4 & 5 would lead to a situation that all officers appointed under Secs. 4 & 5, more particularly Sec.4, are “Abkari Officers”, to exercise the powers and functions in relation to the enumerated sections as per Secs.31, 32, 34, 35, 38, 39 & 53 of the Act. The learned Public Prosecutor has submitted that whereas, Abkari Inspectors, as envisaged in Sec.3(6), are entrusted with the powers and functions in relation to Secs.40 to 53 of the Act, as per the above statutory modifications. So, it appears that all Abkari Inspectors (as defined in Sec.3(6)) would necessarily come within Abkari Officers (as defined in Sec.3(2), whereas all Abkari Officers (as defined in Sec.3(2)) are not necessarily Abkari Inspectors (as defined in Sec.3(6)). 25. The learned Prosecutor would submit that the scenario, based on SRO No.234/1967, published in Kerala Gazette dated 10.08.1967, was as follows: That, Clause 8 of SRO No.234/1967 empowered all officers, not below the rank of Excise Inspectors, to perform the acts and duties mentioned in Sec.40 to 53 of the Act. Hence, it is pointed out by the learned Public Prosecutor that, as per the then scenario, the powers of registration of the crime and proceeding with investigation and to file final report was vested with officers of and above the rank of Excise Inspectors. Further that, as per Clause 12 of SRO No.234/1967, preventive officers of the Excise department, on duty, were notified as Abkari Officers for the purpose of Secs.31, 32, 34, 35, 38, 39, 53 & 59, which relates to detection, arrest and search, relating to commission of the offence under the Act, excluding the power of investigation and the power to file final report before the court. The jurisdictional limitation was relaxed by the proviso contained in SRO No.234/1967, with reference to Secs.31 & 34 of the Act. It is pointed out by the learned Public Prosecutor that SRO No.234/1967 was in respect of conferring powers on officers of the Excise department. Further, it is pointed out by the learned Public Prosecutor that SRO No.321/1996 deals with notifying the designated officers therein of the Police department and from the revenue department and not in relation to officers of the Excise department. Further, it is pointed out by the learned Public Prosecutor that SRO No.321/1996 deals with notifying the designated officers therein of the Police department and from the revenue department and not in relation to officers of the Excise department. That, by SRO No.321/1996, 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 and above the rank of Deputy Collectors to be Abkari Officers, within their respective jurisdiction, for the purpose of the sections enumerated therein, viz., Secs.31 to 35, 38, 40 to 53 & 59. So, it is pointed out by the learned Public Prosecutor that officers of the Police department and the Revenue department, notified as Abkari Officers, as per SRO No.321/1996, were also given power to detect and investigate the offence and to file final report before the court. 26. Further, it is pointed out by the learned Public Prosecutor that, as per Clause 10 of SRO No.361/2009, officers of the Excise Department, not below the rank of Assistant Excise Inspector, have been empowered to perform acts and duties under Secs.40 to 53 of the Act, which deals with investigation of offences under the Act and to file final report before the Court. Further that, as per Clause 14 of SRO No.364/2009, preventive officers have been entrusted with the duties and functions, as per Secs.31 to 35, 38, 39 & 53 of the Act. 27. The upshot of the above discussion is that, in view of the provisions contained in Clause 12 of SRO No.234/1967, made effective from 10.08.1967, as well as Clause 14 of SRO No.361/2009, published with effect from 08.05.2009, read with Sec.3(2) and 4 of the Act, it can be seen that officers of the rank of preventive officers of the Excise department have been duly vested with the power to invoke the provisions contained in Secs.31, 32, 34, 35, 38, 59 & 53 of the Kerala Abkari Act, which means, right from 10.08.1967 onwards, preventive officers of the Excise department have the power to detect the offences, arrest the offenders and effect seizure of the articles, etc. In the facts of this case, PW1 (preventive officer) has carried out the detection of the offence, arrest of the accused, seizure of the article, sampling of the article, preparation of Seizure Mahazar, etc. 28. Since Sec.50A read with SRO No.361/2009 and SRO No.321/1996, authorises the designated officers of the various departments concerned to finalise investigation and to file final report/charge sheet, in terms of Sec.173(2) of the Cr.P.C., it is to be held that, since the said officers have the power to finalise the investigation, such designated officers will also have the power to commence the investigation, in the manner known to law. It may have been better if a statutory notification was issued under Sec.4(d) of the Act, entrusting functions under Sec.30A introduced with effect from 07.12.2009 to the designated officers concerned. 29. A cumulative reading of Clause 12 of SRO No.234/1967 dated 10.08.1967, as superseded and replaced by Clause 14 of SRO No.361/2009 dated 08.05.2009, as well as the provisions contained in Secs.3(2) & 4 of the Abkari Act would lead to the clear and indisputable decision that preventive officers in the Excise department are duly vested with the powers under Secs.31, 32, 34, 35, 38, 39 & 53 of the Act. Hence, they have the power to detect offences, effect search and seizures, arrest offenders, etc., in respect of offences under the Abkari Act. The learned Single Judge has taken a contra view, in para No.6 of Eswaran’s case supra [ 2022 (3) KHC 44 ], only by examining the provisions contained in SRO No.321/1996 dated 29.03.1996 (vide G.O.(P) No.69/1996/TD dated 29.03.1996). A bare perusal of SRO No.321/1996 would make it clear that the said notification was only in the matter of entrustment of powers of Abkari Officers to the officers of the Police department of and above the rank of Sub Inspector of Police, etc., and officers of the Revenue department of and above the rank of Deputy Collectors. 30. Whereas SRO No.234/1967, as superseded and replaced by SRO No.361/2009, is in relation to entrustment of duties and functions, as per the Abkari Act, to various categories of officers in the Excise department itself. The provisions contained in SRO No.234/1967, as superseded and replaced by SRO No.361/2009, has not been adverted to and considered in the rendering of the decision in Eswaran’s case supra [ 2022 (3) KHC 44 ]. 31. The provisions contained in SRO No.234/1967, as superseded and replaced by SRO No.361/2009, has not been adverted to and considered in the rendering of the decision in Eswaran’s case supra [ 2022 (3) KHC 44 ]. 31. Hence, we are constrained to take the view that, preventive officers of the Excise department have been duly entrusted with the duties and functions in relation to Secs.31, 32, 34, 35, 38, 59 & 53 of the Abkari Act and are thus, conferred with all the powers to perform all duties assigned to Abkari officers under the aforesaid sections and hence, they are duly invested with the powers and functions in relation to detection of offences, search and seizure, arrest of offenders, in respect of offences as per the Abkari Act. So, in other words, the contra position, held in para No.6 of the decision of the learned Single Judge of this Court in Eswaran’s case supra [ 2022 (3) KHC 44 ], to the extent that preventive officers of the Excise department are not entrusted with any powers and functions in the matter of detection of offences, search and seizures and arrest of the offenders, etc. does not reflect the correct legal position and to that extent, the said dictum, laid down in para No.6 of Eswaran’s case supra [ 2022 (3) KHC 44 ], will stand overruled. We, accordingly, answer the reference. 32. However, there is yet another technical point to be considered, as we are bound not only to answer the referred issue but also dispose of the criminal appeal. The said issue is as to whether PW1 (preventive officer) has the legal empowerment to register Ext.P5 crime and occurrence reports. 33. It is not in dispute that Ext.P5 crime and occurrence report has been registered by PW1 (preventive officer) in his capacity as Assistant Excise Inspector in-charge of the range office concerned. 34. In the instant case, there is no dispute that the investigation has been done by PW4 (Assistant Excise Inspector) and PW1 has done only prior steps. 35. It has come out in evidence of PW1 that, on the date of occurrence of the incident (25.02.2011), he was having charge of the post of Excise Inspector and that, he has prepared and registered Ext.P5 crime and occurrence report dated 25.02.2011 in his capacity as the Excise Inspector in-charge of Hosdurg range. 35. It has come out in evidence of PW1 that, on the date of occurrence of the incident (25.02.2011), he was having charge of the post of Excise Inspector and that, he has prepared and registered Ext.P5 crime and occurrence report dated 25.02.2011 in his capacity as the Excise Inspector in-charge of Hosdurg range. It is also to be noted that, it is not under dispute that PW4 (Assistant Excise Inspector), has conducted investigation and has filed the final report/charge sheet, in terms of Sec.50 of the Act. 36. A reading of the various provisions of the Abkari Act, more particularly Sec.50 thereof, as it stood prior to the amendment, made effective from 03.06.1997, as well as the provisions of Sec.50, as it stands on or after the amendment made effective from 03.06.1997, would disclose the following aspects. As per Sec.50, as it stood prior to amendment made effective from 03.06.1997, it was then, inter alia, provided that the Abkari Inspector concerned will have to file a report, as envisaged therein and upon receipt of such report, the Magistrate was to inquire into such offence and try the person accused thereof, in the like manner, as if complaint had been made before him, as prescribed in the Cr.P.C., etc. As per the amendment made effective from 03.06.1997, Sec.50 has been substituted as Sec.50 with two sub-sections and Sec.50A. After the amendment, Sec.50(2) stipulates that, as soon as the investigation into the offences under the Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-section(2) of Sec.173 of the Cr.P.C. 37. So, the report referred to in the pre-amended Sec.50 or the amended Sec.50 cannot be the occurrence report or the crime and occurrence report, which is prepared at the commencement of the crime incident. A scanning of the provisions of the Abkari Act would make it clear that there are no explicit provisions in the Abkari Act, which envisages the filing and registration of a occurrence report or crime and occurrence report. 38. The learned Public Prosecutor would submit that the aspects relating to crime-detection, investigation, trials and prevention, etc., are contained in Chapter XXV of the Kerala Excise Manual, Vol.II and Clause 26 thereof deals with the registration of Abkari cases and the same reads as follows:- “26. 38. The learned Public Prosecutor would submit that the aspects relating to crime-detection, investigation, trials and prevention, etc., are contained in Chapter XXV of the Kerala Excise Manual, Vol.II and Clause 26 thereof deals with the registration of Abkari cases and the same reads as follows:- “26. Registration of Abkari Cases:-Abkari cases shall be registered in Form OR.1 by the Excise Inspector of the concerned range from which the case was detected. The specific charge alleged to be committed by the accused persons shall be described in the Crime and Occurrence Report. The Excise Inspector shall affix his dated signature in the Crime and Occurrence Report. Asst. Excise Inspectors who hold charge of the Excise Inspector can also register the crimes at range office. The Excise Inspector of the range office shall peruse the documents produced before him and conduct an enquiry with available documents and materials before registering the crime.” 39. Clause 28 thereof deals with investigation and it has been, inter alia, mentioned therein that Investigation of an Abkari case starts as soon as the case is registered, etc. 40. It is well settled by the decisions of this Court, as in Thankachan v. Circle Inspector of Excise [ 1989 (2) KLT 316 -(paras 4 & 8)], Santhosh T.A. & Another v. State of Kerala [ILR 2018 (1) Ker. 291 (para 17 & 18)], Krishnan v. State of Kerala [2021 (1) KLT Online 1022 (DB)-paras 48 – 50], that the provisions contained in the Kerala Excise Manual are not statutory provisions and are only a set of executive guidelines. 41. Though the provisions contained in the Abkari Act does not explicitly envisage about filing and registration of a crime and occurrence report, Sec.50(2) envisages about the finalisation of the investigation process, by the filing of the final report/charge sheet, as envisaged in Sec.173 (2) of the Cr.P.C. 42. Therefore, necessarily, there has to be a commencement of the crime incident. Since there are no explicit provisions in the Abkari Act, the analogous provisions in the Cr.P.C., would be relevant and useful. As per the scheme of the Cr.P.C., Sec.154 of the Cr.P.C. deals with lodging of the First Information Statement and registration of the First Information Report. 43. Therefore, necessarily, there has to be a commencement of the crime incident. Since there are no explicit provisions in the Abkari Act, the analogous provisions in the Cr.P.C., would be relevant and useful. As per the scheme of the Cr.P.C., Sec.154 of the Cr.P.C. deals with lodging of the First Information Statement and registration of the First Information Report. 43. We are given to understand that the authorised police officers of the police department in exercise of their powers under SRO No.321/1996, may not be following the Excise Manual, but the provisions contained in Sec.154 read with Sec.2(o) of the Cr.P.C., as the criteria and norms for lodging of First Information Statement and registration of First Information Report (FIR). Going by the prescriptions in Sec.2(o) of the Cr.P.C., where the designated officer-in-charge of the police station is unable to perform duties or is absent from the Station House, then the police officer concerned, present in the police station office, who is next in rank to such officer and who is above the rank of constable, is entitled to register First Information Report in terms of Sec.154 of the Cr.P.C. Since the respective authorised officers of the excise department, police department and revenue department may be dealing with offences as per the Kerala Abkari Act, it may be relevant to reckon the criteria and norms in Sec.154 read with Sec.2(o) of the Cr.P.C. for the purpose of registration of FIR/crime and occurrence report, in regard to offences under the Kerala Abkari Act. 44. It has been, inter alia, stipulated in Sec.154(1) of the Cr.P.C. that every information relating to the commission of a cognizable offence, if given orally, to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, etc, and every such information, whether given in writing or reduced to writing, as aforesaid, shall, inter alia, be entered in a book to be kept by such officer in such form, etc. Sec.2(o) of the Cr.P.C. defines “officer-in-charge of a police station” as follows:- “2. Sec.2(o) of the Cr.P.C. defines “officer-in-charge of a police station” as follows:- “2. Definitions xxxxxxxxx (a) xxxxxxx (b) xxxxxxx xxxxxxxxx (o) “officer-in-charge of a police station” includes, when the officer-in-charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of a constable or, when the State Government so directs, any other police officer so present;” 45. In the case in Vijayan v. State of Kerala [ILR 2013 (3) Ker. 772], the Division Bench of this Court was concerned with a case wherein the Station House Officer (SHO) was the Circle Inspector of Police and the officer immediately below the SHO was the Sub Inspector of Police. The SHO (Circle Inspector of Police) was on leave and PW13 therein (Sub Inspector of Police) was in additional charge of the post of Circle Inspector of Police. It came out in evidence that PW 11 (Assistant Sub Inspector of Police) had recorded the FIR in that case and that, he was authorised in that regard by PW13. The competence of PW11 (Assistant Inspector of Police) was not challenged at the time of evidence (see para 9 of Vijayan’s case supra [ILR 2013 (3) Ker. 772]). Further, the Division Bench of this Court, in para Nos.32 to 42, after examining the provisions contained in Sec.154 Cr.P.C. and placing reliance on the Constitution Bench decision of the Apex Court in R.P. Kapoor & Others v. Sardar Pratap Singh Kairon & Ors. [AIR (1961) SC 1117] para No.10, held that the crux of Sec.154 Cr.P.C. is on the duty of the police officer to reduce into writing, every information given to him, relating to the commission of cognizable offences and the emphasis is not on the competency or otherwise of the police officer to record the First Information Statement. Further that, Sec.154(3) permits any person, aggrieved by a refusal on the part of an officer-in-charge of a police station, to record the information referred to in Sec.154(1), to send the substance of such information, in writing and by post, to the Superintendent of Police, etc. Further that, Sec.154(3) permits any person, aggrieved by a refusal on the part of an officer-in-charge of a police station, to record the information referred to in Sec.154(1), to send the substance of such information, in writing and by post, to the Superintendent of Police, etc. After examining the definition of officer-in-charge of police station, as per Sec.2(o) of the Code of Criminal Procedure, it was held that the said definition is an inclusive definition and it includes the police officer present in the police station, who is next in rank to the officer-in-charge of the police station and that it has come out in evidence that the FIR in that case contained a note that the Assistant Sub Inspector of Police had got information about the incident and, at that time, he was in charge of the police station and that he had gone to the spot and recorded the First Information Statement of PW1 and had thus, registered the impugned FIR in that case. The Division Bench of this Court held that, the registration of the FIR cannot be said to be illegal or ultravires. Sec.2(o) of the Code of Criminal Procedure contains an inclusive definition of officer-in-charge of a police station, which also includes, when the officer in charge of a police station is absent from the station house or unable, from illness or other cause to perform his duties, the police officer present in the above station house, who is next in rank to such officer, and who is above the rank of constable or when the State Government so directs, any other police officer so present, etc. 46. The learned Public Prosecutor has brought to our notice that the post of preventive officer is the regular promotion post of excise guard/civil excise officer. Further that the post of head constable/senior civil police officer in the police department is a regular promotion post for constable/civil police officer, etc. The learned Prosecutor would also point out that the pay scale and rank of preventive officer in the excise department is broadly equivalent to that of Head Constable/Senior Civil Police Officer of the department concerned, etc. Further that the post of head constable/senior civil police officer in the police department is a regular promotion post for constable/civil police officer, etc. The learned Prosecutor would also point out that the pay scale and rank of preventive officer in the excise department is broadly equivalent to that of Head Constable/Senior Civil Police Officer of the department concerned, etc. Hence, going by the hierarchy of the posts, it can be seen that the post of preventive officer of the excise department is above the rank of the post of Excise Guard/Civil Excise Officer, which is a lower post, equivalent to the post of Constable/Civil Police Officer of the police department. It is also pertinent to note that Sec.3(21A) of the Kerala Abkari Act defines Police Station to include “any place which the Government may, by notification, declare to be a Police Station for the purposes of that Act.” The learned Additional State Prosecutor has made available a copy of SRO No.366/1976, published in Kerala Gazette dated 06.04.1976 (GO (MS) No.31/1976/TD dated 20.03.1976), whereby the Government has declared, in excise of the powers under Sec.3(21A) of the Kerala Abkari Act, that the Excise circle offices and Excise range offices to be Police Stations for the purposes of Sec.53 of the Act, etc. 47. So, atleast for the limited purpose of Sec.53 of the Kerala Abkari Act, Excise Circle Offices headed by the Circle Inspector of Excise concerned and Excise Range Offices headed by the Inspector of Excise of the range concerned, are being treated as police stations for that purpose. 48. So, it may appear that the Circle Inspector of Excise Circle concerned may be the officer in-charge of the Excise circle office concerned and the excise inspector concerned of the Excise Range may be the officer in-charge of the excise range concerned. The learned Public Prosecutor has pointed out that it has been mentioned in Clause 26 of the Kerala Excise Manual, Vol.II, that Abkari cases shall be registered in occurrence report, as per Form OR-1 by the Excise Inspector of the range concerned, from which the case was detected and that the Assistant Excise Inspectors, who hold charge of Excise Inspector can also register crimes. 49. 49. It has also come out in evidence that PW1 (preventive officer) was having the charge of the post of Excise Inspector on the day in question and that he has prepared and registered Ext.P5 crime and occurrence report on that day in his capacity as the Excise Inspector in-charge of Hosdurg Excise Range. The abovesaid factual aspect has not been challenged in evidence. So also, the competency of PW1 (preventive officer) to prepare and register Ext.P5 crime and occurrence report has not, in any manner, been challenged during the cross-examination of either PW1 (preventive officer) or PW4 (Investigating Officer). 50. We have only analogously placed reliance on the provisions contained in the Cr.P.C., as in Sec.154 & Sec.2(o) thereof, as there are no explicit provisions in the Kerala Abkari Act regarding the registration of crime and occurrence report. 51. The learned Public Prosecutor has submitted that, ordinarily, the Excise Department strictly enforces the provisions contained in Clause XXVI of the Kerala Excise Manual, Vol.II, whereby the consistent practice is that the crime and occurrence report is registered by an officer of the rank of Excise Inspector or by the Assistant Excise Inspector having the charge of Excise Inspector. 52. We note the said submission of the learned Public Prosecutor. 53. Having regard to the facts and circumstances, we are of the view that, if at all there is any issue regarding the competency of PW1 to register Ext.P5 crime and occurrence report, the same is only a technical irregularity. 54. The competence of PW1 to register Ext.P5 crime and occurrence report has not been challenged either during the examination of witnesses like PW1, PW4, etc. or at the time of addressing arguments in the aforesaid trial. Such an objection, regarding the competency of PW1 to register Ext.P5, has not been raised in this criminal appeal as well. 55. In the light of these aspects, we are of the considered view that the investigation cannot be said to be found as illegal or ultra vires, merely on account of the fact that PW1, who was of the rank of Preventive Officer and who was the Excise Inspector in-charge on the day in question, has registered Ext.P5 crime and occurrence report. In other words, we are not prepared to hold that the trial is vitiated on account of Ext.P5 crime and occurrence report having been registered by PW1. In other words, we are not prepared to hold that the trial is vitiated on account of Ext.P5 crime and occurrence report having been registered by PW1. The up-shot of the above discussion is that the aforesaid first contention of the appellant cannot be countenanced by us and hence, the said contention is rejected by us. Contention (B): The next contention urged by the counsel for the appellant/accused is that the conviction of the accused for the charged offence, punishable under Sec.55(a) of the Abkari Act, is illegal. The operative portion of Clause (a) of Sec.55 of the Abkari Act provides as follows: "55. For illegal import, etc. -Whoever in contravention of this Act or of any rule or order made under this Act (a) imports, exports, transports, transits or possesses liquor or any intoxicating drug; or (b) xxxx xxxx xxxx xxxx (c) xxxx xxxx xxxx xxxx (d) xxxx xxxx xxxx xxxx (e) xxxx xxxx xxxx xxxx (f) xxxx xxxx xxxx xxxx (g) xxxx xxxx xxxx xxxx (h) xxxx xxxx xxxx xxxx (i) xxxx xxxx xxxx xxxx (1) for any offence, other than an offence falling clause (d) or clause (e), with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh, and (2) for any offence falling under clause (d) or clause (e), with imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees or with both. Explanation.-For the purpose of this section and section 64A, "intoxicating drug" means any intoxicating substance, other than a narcotic drug or psychotrpic substance regulated by the Narcotic Drugs and Psychotripic Substances Act, 1985 (Central Act 61 of 1985), which the Government may by notification declare to be an intoxicating drug." 56. Sri.T.Madhu, learned counsel appearing for the appellant/accused, would urge, on the basis of the observations appearing in the second sentence of para 10 of the decision of the Division Bench of this Court in Mohanan v. State of Kerala [ 2007 (1) KLT 845 ], that to sustain a conviction under Clause (a) of Sec.55, possession simpliciter is not sufficient and that such culpability is only when persons illegally import or transport liquor or are in possession of liquor, while illegally importing it. In the instant case, the specific allegation in the charge framed by the Court is that the accused was found transiting 5 litres of arrack and that, there is no allegation that the said possession attributed was in the course of import but only in the course of transit. Further that, even the allegation in Ext.P-5 Crime and Occurrence Report and in the Final Report/Charge Sheet is that the accused was found moving/transporting with the abovesaid quantity of arrack and that, evidence of PW1 (Preventive Officer) is that the accused was found moving/transporting with a can of 5 litres of arrack. It can be seen that, even in the version of the prosecution, in the Occurrence Report, Final Report as well as in the evidence, the allegation is only that the possession was coupled with transport. That, the accused, who was in possession of the arrack, was found moving/transporting and there is no allegation that it was in the course of import/export. Hence, it is urged that, in view of the abovesaid dictum laid down by the Division Bench of this Court in Mohanan's case supra, the conviction under Sec.55(a) is unsustainable. 57. This contention has been strongly opposed by Sri.P.Narayanan, learned Additional Public Prosecutor. The details of the said contention need not be stated, as we are inclined to accept the said plea of the Prosecutor, for which we are giving our reasonings. 58. At the outset, it has to be noted, that the contention urged by the counsel for the appellant is based on some stray observations of the Division Bench in the second sentence of para 10 of Mohanan's case supra [ 2007 (1) KLT 845 ]. A reading of the decision of the Division Bench of this Court in Mohanan's case supra, more particularly para 10, would make it clear that, what has been settled by the Division Bench therein is regarding the correctness of the dictum laid down by the Division Bench of this Court in a previous decision in Surendran v. Excise Inspector [ 2004 (1) KLT 404 (DB)]. As a matter of fact, the Division Bench has categorically held, in the third sentence in para 10 of Mohanan's case supra, that some of the previous decisions of this Court, which are contrary to the decision of the Division Bench in Surendran's case supra, are no longer good law. As a matter of fact, the Division Bench has categorically held, in the third sentence in para 10 of Mohanan's case supra, that some of the previous decisions of this Court, which are contrary to the decision of the Division Bench in Surendran's case supra, are no longer good law. Hence, the categorical finding of the Division Bench in Mohanan's case supra is that the dictum laid down by the Division Bench in Surendran's case supra is correct. 59. A reading of para 9 of the decision of the Division Bench in Surendran's case supra [ 2004 (1) KLT 404 (DB)] would make it clear that, the Division Bench therein has held that the case would fall within the ambit of Sec.55(a) of the Abkari Act when a person is found to be in possession of liquor in the course of import, export, transport or transit of the goods. This is all the more clear from a reading of para 8 of Surendran's case supra, wherein it has been held that the culpable possession envisaged in Sec.55(a) must be in the course of import, export, transport or transit. In other words, what has been held by the Division Bench in Surendran's case supra is that possession coupled with any of the four ingredients, namely import, export, transport or transit would suffice. 60. It is reiterated, in para 5 of the decision of the Division Bench of this Court in Josekutty v. State of Kerala [ 2013 (1) KLT 434 ], that, after placing reliance on Surendran's case supra, the case shall fall within the ambit of Sec.55(a) of the Act, only when a person is found to be in possession of liquor in the course of import, export, transport or transit of the goods. 61. So, the contention of the appellant accused, on the basis of some of the stray observations of the Division Bench in Mohanan's case supra [ 2007 (1) KLT 845 ], is not tenable and sustainable, as the said decision as well as the other two Division Bench judgments referred to hereinabove, namely Surendran's case supra and Josekutty's case supra, have reiterated that, for a case to fall within the criminal culpability of Sec.55(a), possession of liquor coupled with any of the four ingredients, namely import, export, transport or transit, would suffice. In other words, the contention that the possession of liquor should necessarily be in the course of import, does not reflect the correct legal position. That apart, it is to be noted that the specific allegation of the prosecution agency, in Ext.P-5 Crime and Occurrence Report, the Final Report/Charge Sheet and the evidence of PW1 is that, on the day in question, the accused was found moving with a can containing 5 litres of arrack. 62. That apart, the following aspects would also be relevant : The four words, other than 'possesses', employed in Clause (a) of Sec.55 are imports, exports, transports or transits. Sec. 3(16) of the Abkari Act defines 'Import' as follows:- " Sec.3(16) Import.-"Import" means to bring into the State." 63. Sec.3(17) of the Abkari Act defines 'Export' as follows: "Sec.3(17) Export.-"Export" means to take out of the State." 64. Sec.3(17A) of the Abkari Act deals with the definition clause of 'Transit', which reads as follows: "Sec.3(17A) Transit.-"Transit" means to move from one place in a State to another place in that State or to any other State through the territory of the State of Kerala. Explanation.-In this clause, "State" means a State other than the State of Kerala and includes a Union Territory." 65. Sec.3(18) of the Abkari Act defines 'Transport' as follows: "Sec.3(18) Transport.-"Transport" means to move from one place to another within the State." 66. So, it can be seen that, the word 'Import' means to bring into the State of Kerala and the word 'Export' means to take out of the State of Kerala. Whereas, Sec.3(17A) defines 'Transit' means to move from one place in a State to another place in that State or to any other State through the territory of the State of Kerala. In that context, 'State' means a State other than the State of Kerala and includes Union Territory. So also, Sec.3(18) defines 'Transport' to mean to move from one place to another within the State of Kerala. It is to be noted that Sec.3(24) defines 'State' to mean the State of Kerala. 67. In that context, 'State' means a State other than the State of Kerala and includes Union Territory. So also, Sec.3(18) defines 'Transport' to mean to move from one place to another within the State of Kerala. It is to be noted that Sec.3(24) defines 'State' to mean the State of Kerala. 67. So, it can be seen that, for attracting the ingredient of 'transit' there is no import or export involved in the act of transit, as it means to move from one place in State 'A' to another place in that State 'A', through the territory of the State of Kerala or to move from one place in State 'A' to State 'B', through the territory of the State of Kerala. In that context, the State, other than the State of Kerala, includes a Union Territory. So also, the word 'transport' means to move from one place to another within the State of Kerala. Hence, it is clear that, for the ingredients of transit/transport, there is no question of involvement of import/export, as understood in Secs. 3(16) & 3(17) respectively. So, the argument of the appellant, that transport, transit etc. should necessarily be coupled with import or export, is a contradiction of the terms of the very definitions in the abovesaid Clauses. 68. The offences alleged in the Crime and Occurrence Report and in the Final Report are those punishable under Secs.8(1) & (2) of the Abkari Act. In that regard, it is also to be noted that the specific words in Malayalam language, used in the Occurrence Report, the Final Report and in the evidence are that .That, he was found moving or transporting with a can of 5 litres of arrack. However, while framing the charge, on 14.08.2013, the Sessions Court had translated the Malayalam word "OTHER LANGUAGE". " as 'transiting' instead of using the words 'transporting'. In view of these aspects, we reject the contention of the accused that no offence as per Sec.55(a) is made out in this case. Contention (C): The last and final contention urged by the counsel for the appellant/accused is that the impugned conviction and sentence, imposed on the appellant, is unsustainable, as Ext.P-8 inventory is prepared in flagrant violation of the requirements of Sec.53A(2) of the Abkari Act. Contention (C): The last and final contention urged by the counsel for the appellant/accused is that the impugned conviction and sentence, imposed on the appellant, is unsustainable, as Ext.P-8 inventory is prepared in flagrant violation of the requirements of Sec.53A(2) of the Abkari Act. In that regard, the appellant would place serious reliance on the decisions of this Court in Balakrishna Rai v. State of Kerala [ 2020 (3) KLT 727 , para 24] and Chandran @ Chandrasekharan v. State [ 2016 (4) KLT 727 ]. 69. This contention is also opposed by the learned Additional State Prosecutor. 70. We have heard both sides on this contention and, for the reasons to be given by us hereinafter, we are of the firm view that the appellant is entitled to succeed on this ground. 71. Sec.53A of the Abkari Act provides as follows: "53A. Disposal of seized liquor, intoxicating drugs or articles.-(1) Notwithstanding anything contained in this Act, the State Government may having regard to the nature of the liquor, intoxicating drug, or article, its vulnerability to theft, substitution, constraints of proper storage space or any other relevant consideration, by notification in the official Gazette, specify such liquor, intoxicating drug or article which shall, as soon as may be after its seizure, be disposed of by the authorised officer referred to in section 67B, in such manner as the Government may, from time to time determine after following the procedure hereinafter specified. (2) Where any such notified liquor, intoxicating drug or article has been seized under this Act, the authorised officer shall prepare an inventory of such liquor, intoxicating drug or article containing such details relating to their description, quality, quantity, mode of packing, marks, numbers of such other identifying particulars of the liquor, intoxicating drug or article or the packing containers in which they are kept, place of origin and other particulars, as the authorised officer may consider relevant to identify the liquor, intoxicating drug or article in any proceedings under this Act and make an application to any Magistrate having jurisdiction over the area where the seized liquor, intoxicating drug or articles or stored for the purpose of,- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, Photographs of such liquor, intoxicating drug or article and certifying such photographs as true; or (c) allowing to draw representative samples of such liquor, intoxicating drug or article in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2) the Magistrate shall, as soon as may be, visit the place where such liquor, intoxicating drug or articles are stored and take appropriate steps as specified in clauses (a), (b) and (c) of sub-section (2), and allow the application. (4) Where any liquor or intoxicating drug or article under this Act has been kept under the custody of any court in connection with any offence committed under this Act, before the commencement of the Abkari (Amendment) Act, 2003 or has been brought before a Magistrate without complying the procedure laid down in sub-section (2), the authorised officer shall obtain prior permission of the Court or Magistrate before initiating proceedings under sub-section (2). (5) Notwithstanding anything contained in the Indian Evidence Act, 1872 (Central Act 1 of 1872) or the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), any Court trying an offence under this Act, shall treat the inventory, the photographs of liquor, intoxicating drug or article and any list of samples drawn under sub sections (2) and (4) and certified by the Magistrate, as primary evidence in respect of such offence. Explanation.-Article' for the purpose of this section includes jaggery and other like substances, the value of which depreciates in passage of time." 72. Explanation.-Article' for the purpose of this section includes jaggery and other like substances, the value of which depreciates in passage of time." 72. It has been held by this Court in Balakrishna Rai v. State of Kerala [ 2020 (3) KLT 727 , para 24] as follows: "24.There is merit in the contention of the learned counsel for the petitioner that the inventory was not prepared by the authorised officer but it was only signed by him. True, Ext. P9 inventory is signed by the Assistant Excise Commissioner, the authorised officer. But, it also bears the signature of the Preventive Officer with the date 22.08.2008, that is, the date of the occurrence. It indicates that the inventory was not prepared by the Assistant Excise Commissioner, who is the authorised officer, but it was prepared by PW1 Preventive Officer himself." 73. In para 25 of Balakrishna Rai's case supra, this Court has placed reliance on the decision of this Court in Chandrasekharan's case supra [ 2016 (4) KLT 727 ], which reads as follows: “In this case, PW1 was admittedly not an authorised officer under Section 67B of the Abkari Act. Therefore, he was not an authorised officer competent to prepare the inventory under subsection (2) of Section 53A of the Abkari Act. Since Ext. P7(a) was prepared by an officer not authorised under the Abkari Act, Ext. P7(a) cannot be acted upon as the same is patently illegal. When Ext. P7(a) cannot be acted upon, the entire contraband should have been produced before the Court. However, in this case, the contraband articles were not produced before the Court and instead of that, the prosecution relied on Ext. P7(a) inventory, which is patently illegal and consequently, the revision petitioner is entitled to acquittal." (emphasis supplied) 74. It has been held by this Court in para 10 of Chandrasekharan's case supra that:- "............In this case, PW1 was admittedly not an authorised officer under Section 67B of the Abkari Act. Therefore, he was not an authorised officer competent to prepare the inventory under sub section (2) of section 53A of the Abkari Act. Since Ext.P7 (a) was prepared by an officer not authorised under the Abkari Act, Ext.P7(a) cannot be acted upon as the same is patently illegal. When Ext.P7(a) cannot be acted upon, the entire contraband should have been produced before the court. Since Ext.P7 (a) was prepared by an officer not authorised under the Abkari Act, Ext.P7(a) cannot be acted upon as the same is patently illegal. When Ext.P7(a) cannot be acted upon, the entire contraband should have been produced before the court. However, in this case, the contraband articles were not produced before the court and instead of that, the prosecution relied on Ext.P7(a) inventory, which is patently illegal and consequently, the revision petitioner is entitled to acquittal." 75. Sub-section (1) of Sec.53A of the Act enables the authorities concerned to dispose of the seized contraband, etc. So, in other words, the prosecution has the discretion not to produce the seized contraband before the Court and they could dispose of the seized contraband, etc., as can be seen from a reading of Sec.53A(1). The power to dispose of the seized contraband is given to the authorized officer, referred to in Sec.67B, as can be seen from Subsection (1) of Sec.53A. Sub-section (2) of Sec.53A stipulates that, where such contraband has been seized under the Act, the authorized officer supra shall prepare an inventory of such liquor/contraband etc., containing such details relating to the description, quality, quantity, mode of packing, marks etc., as the authorized officer may consider relevant, and make an application to the Magistrate for the purpose of (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such liquor, etc; or (c) allowing to draw representative samples of such liquor etc. Sub-section (3) thereof mentions that, where an application under Sub-section (2) of Sec.53A is made, it is for the Magistrate to allow the application, etc. 76. Sub-Section(5) of Sec.53A provides that, notwithstanding anything contained in the Indian Evidence Act or the Code of Criminal Procedure etc., any Court trying an offence under the Act, shall treat the inventory, photographs of the liquor, intoxicating drug or article and any list of samples drawn under Subsections (2) & (4) supra and certified by the Magistrate, as primary evidence, in respect of such offence, etc. 77. It is common ground that the State Government has issued SRO No.671/75, published in Gazette dated 01.04.1969 issued under Sec.67B(1) of the Abkari Act, whereby the Government has authorized the Assistant Excise Commissioners in charge of Excise Divisions as officers, for the purposes of the said Sec.67B(1), within their respective jurisdiction. 77. It is common ground that the State Government has issued SRO No.671/75, published in Gazette dated 01.04.1969 issued under Sec.67B(1) of the Abkari Act, whereby the Government has authorized the Assistant Excise Commissioners in charge of Excise Divisions as officers, for the purposes of the said Sec.67B(1), within their respective jurisdiction. So, by virtue of the stipulation of Sec.53A(1), the authorized officer, in terms of Sec.67B(1), is also the authorized officer for the purpose of Sec.53A. 78. In Balakrishna Rai's case supra, this Court found that the inventory, said to have been prepared as per Sec.53A(2), was not prepared by the authorized officer but it was only signed by him and it was also signed by the Preventive Officer, who is not the authorized officer for that purpose, with a specific date, i.e. the date of occurrence. Hence, this Court held that this gives rise to a reasonable inference that the inventory was not prepared by the authorized officer (Assistant Excise Commissioner), but it may have been prepared by PW1 therein, i.e. the Preventive Officer himself. Hence, this Court found that the inventory has been prepared in violation of the requirements of Sec.53A(2) and so, the impugned conviction and sentence is not legally justified. 79. In Chandrasekharan's case supra [ 2016 (4) KLT 727 = 2016 (5) KHC 650 , para 10] this Court held that PW1 therein was, admittedly not an authorized officer and therefore, he was not competent to prepare the inventory therein under Sec.53A(2) and hence, the impugned conviction and sentence was held to be illegal and ultra vires. 80. In the facts of this case, Ext.P-8 is the inventory, claimed to have been prepared in accordance with Sec.53A(2). It is seen signed by PW1 [Preventive Officer in charge of Excise Inspector] as well as by the Assistant Excise Commissioner. Both signatories have not shown any date, on which, they stated to have signed it. Also, the Assistant Excise Commissioner, who is stated to have signed Ext.P-8 inventory, has not given any evidence. PW1, other than marking Ext.P-8, has not given any positive evidence regarding the preparation of the inventory and that it was actually prepared by the authorized officer, namely the Assistant Excise Commissioner or even that Ext.P-8 inventory was verified by the Magistrate, as mandated in the section. 81. PW1, other than marking Ext.P-8, has not given any positive evidence regarding the preparation of the inventory and that it was actually prepared by the authorized officer, namely the Assistant Excise Commissioner or even that Ext.P-8 inventory was verified by the Magistrate, as mandated in the section. 81. In Cross Examination, PW1 has stated that Ext.P-8 inventory has been signed by him but he has not shown the date. Even in Cross Examination, no where in the evidence of PW1, has he given any evidence that Ext.P-8 inventory was, in fact, prepared by the authorized officer/Assistant Excise Commissioner. Along with Ext.P-8, an application dated 01.03.2011 is said to have been submitted by the Deputy Commissioner of Excise, Kasargod, before the Magistrate, requesting for verification of the inventory. Though the certificate of the Magistrate, regarding verification, is seen along with the records, it is not known as to whether the said certificate dated 01.07.2011, said to have been issued by the learned Magistrate, has also been marked separately or is part of Ext.P-8. 82. At any rate, the case records would show that the request for verification of the inventory has been given to the Magistrate only on 01.03.2011 and the certificate is seen issued by the Magistrate on 01.07.2011. There is undue delay in the process of verification. In other words, the inventory and the verification process is not seen prepared in accordance with the requirements of Sec.53A(2). It has to be borne in mind that, in the instant case, the seized contraband has not been produced before the Court. So, there should be substantial assurance to the Court to safely reach a conviction, based on the inventory, said to have been prepared as per Ext.P-8. Since, the seized contraband has not been produced before the Court, presumably, by virtue of the discretion granted under Sec.53A(1), in order to ensure that the Court can safely base their conviction, the inventory should be prepared strictly in accordance with the requirements of Sec.53A(2). Hence, in the instant case, there is no evidence that Ext.P-8 has been prepared by the authorized officer and that it has been subjected to proper verification. The signatories to Ext.P-8 have not even affixed the dates. The verification is highly belated. For all these reasons, it is not safe to rely on these materials, so as to convict the accused. The signatories to Ext.P-8 have not even affixed the dates. The verification is highly belated. For all these reasons, it is not safe to rely on these materials, so as to convict the accused. These aspects have not been duly considered by the Sessions Court concerned. In other words, the impugned conviction and sentence, imposed on the appellant/accused, is illegal and ultra vires. 83. That apart, PW3, who is the independent attesting witness of Ext.P-4 Mahazar, has turned hostile and eventhough he has admitted his signature therein, he has stated that he has not seen the incident at all. It is also to be noted that the incident, arrest and seizure are said to be held on 25.2.2011. The scene mahazar, as per Ext.P-10, is seen prepared only on 9.11.2011. There has been inordinate delay in the preparation of the scene mahazar. At any rate, the appellant is entitled to succeed, on the ground of violation of Sec.53A(2), in the preparation of Ext.P-8 inventory. 84. For all these reasons, it is ordered, in the interest of justice, that the impugned judgment dated 23.12.2013 rendered by the Addl. District and Sessions Court-III, Kasaragod in S.C.No.691/2012 will stand set aside. Consequently, it is ordered that the impugned conviction and sentence imposed on the appellant/accused in S.C.No. 691/2012 on the file of the said Court will stand set aside and the appellant/accused is set at liberty. The bail bond executed by the accused in this case will also stand cancelled. Hence, the appellant succeeds. With these observations and directions, the above Criminal Appeal will stand disposed of.