A. Sreedhara v. Excise Inspector, Badiadka Exise Range & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** # **MONDAY, THE 03RD DAY OF AUGUST 2020 / 12TH SRAVANA, 1942** **Crl.Rev.Pet.No.889 OF 2014** **AGAINST THE JUDGMENT IN SC 444/2011 OF ASSISTANT SESSIONS COURT, KASARAGOD** **AGAINST THE JUDGMENT IN CRA 152/2013 OF ADDITIONAL SESSIONS COURT-III, KASARAGOD** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **A.SREEDHARA AGED 39 YEARS S/O. NARAYANA POOJARY, RESIDING AT KOLIYADUKKAM, KARADKA VILLAGE, KASARAGODE.** **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 EXCISE INSPECTOR BADIADKA EXCISE RANGE-671541. 2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14.07.2020, THE COURT ON 03.08.2020 PASSED THE FOLLOWING:** Crl.R.P.No.889/2014 2 ## **R. NARAYANA PISHARADI, J** **---------------------------------------------------Crl.R.P No. 889 of 2014 -----------------------------------------------------** Dated this the 3[rd ] day of August, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C No. 444/2011 on the file of the Court of the Assistant Sessions Judge, Kasaragod. 2. The prosecution case is that, on 25.04.2009, at about 12:30 hours, at the public road near the house of the petitioner/accused in Karadka Village, PW1 Preventive Officer found him in possession of a can containing three litres of arrack. 3. The trial court framed charge against the accused for the offence punishable under Section 8(2) of the Abkari Act. The petitioner/accused pleaded not guilty to the offence and claimed to be tried. 4. The prosecution examined PW1 to PW5 and marked Exts.P1 to P11 documents. No evidence was adduced by the accused. 5. The trial court found the petitioner guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and Crl.R.P.No.889/2014 3 convicted him thereunder and sentenced him to undergo simple imprisonment for a period of one year and also to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of two months. 6. The petitioner filed Crl.A.No.152/2013 before the Court of Session, Kasaragod challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 7. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. 8. Heard the learned counsel for the petitioner and also the learned Public Prosecutor. Perused the records. 9. PW1 is the Preventive Officer who detected the offence. He has given evidence regarding the occurrence in detail. PW2 is another Preventive Officer who was in the excise party led by PW1. His evidence corroborates the testimony of PW1 with regard to the material particulars of the occurrence. 10. PW3 and PW4 are the independent witnesses examined by the prosecution to prove the occurrence. They did not support the prosecution case. They denied having seen the incident. Crl.R.P.No.889/2014 4 11. Ext.P11 is the chemical analysis report received in respect of the sample which was forwarded for analysis. It shows that the sample of liquid contained 34.07% by volume of ethyl alcohol. 12. After perusing the evidence adduced by the prosecution and the judgments of the courts below, I find it difficult to sustain the conviction entered against the petitioner. The reasons are as follows. 13. PW1 has given evidence that he took sample of the liquid contained in the can and sealed the sample bottle and also the can containing the residue and affixed label, bearing his signature and the signature of the accused and the witnesses, on them. There is also a specific recital to that effect in Ext.P5 seizure mahazar. 14. PW1 has given evidence that, on reaching the excise range office with the accused and the records, he registered Ext.P6 crime and occurrence report. He has also given evidence that he produced the material objects before the court as per Ext.P7 property list. 15. The description of the can and the sample bottle given in Ext.P6 crime and occurrence report does not show that there was any seal or label on them. However, the description of the sample bottle given in Ext.P7 property list shows that it was sealed and labelled. It means that, there was seal and label on it, when it was produced in the court. Therefore, it is evident that seal and label were affixed on the bottle containing the sample at the excise range office and not at Crl.R.P.No.889/2014 5 the spot of the occurrence, before it was produced in the court. It creates suspicion as to any sample was actually drawn at the spot of the occurrence. 16. PW1 has stated on cross-examination that an empty foreign liquor bottle was used for taking the sample. However, PW2 has stated on cross-examination that the sample was taken in a colourless bottle and not in a foreign liquor bottle. This also creates suspicion as to whether the sample was drawn at the spot of the occurrence itself. 17. PW1 has given evidence that he produced the can containing the residue of arrack before the Deputy Excise Commissioner. The can containing the arrack was not produced before the trial court and it was not marked as a material object. 18. Learned Public Prosecutor has submitted that the can containing the arrack was produced by the Deputy Excise Commissioner before the Magistrate concerned as per Ext.P9 inventory and the inventory was certified by the Magistrate and therefore, it was not necessary to produce the can containing arrack before the trial court. 19. Of course, if the seizure of the material is otherwise proved on record and is not even doubted or disputed, the entire contraband substance need not be produced before the court [See **State of** Crl.R.P.No.889/2014 6 ## **Rajasthan v. Sahi Ram: AIR 2019 SC 4723 and Than Kunwar v. State of Haryana: 2020(1) KLD 476 (SC): 2020(2) KLT OnLine** **1135(SC)]** . But this a case in which the seizure of the bulk quantity of arrack from the possession of the accused is not proved otherwise by reliable evidence. 20. Section 53A of the Abkari Act provides for preparation of inventory of liquor seized under the Act, by the authorised officer and also certification of such inventory by the Magistrate concerned. Section 53A(5) of the Abkari Act states that, notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, any court trying an offence under the Act, shall treat the inventory certified by the Magistrate, as primary evidence in respect of such offence. 21. If the authorised officer has properly prepared the inventory and the Magistrate concerned has certified it as correct after proper verification, it is not necessary to produce the bulk quantity of liquor seized under the Act before the trial court. The very purpose of the provision contained in Section 53A of the Act is disposal of large quantity of seized contraband liquor immediately after the seizure on retaining evidence regarding the seizure. 22. However, when the procedure under Section 53A of the Abkari Act is not adopted and strictly followed and when the bulk Crl.R.P.No.889/2014 7 quantity of liquor is not produced also before the court and when no evidence is also adduced to show that the bulk quantity of liquor has been destroyed, then seizure of such liquor itself becomes a doubtful matter. The accused will then be entitled to take advantage of such doubt [See **Balakrishna Rai v. State of Kerala: 2020(3) KHC 286:2020(3)KLT 727** ]. 23. In the instant case, the evidence of PW1 would show that he produced the can containing the residue (after taking sample) before the Deputy Excise Commissioner. The Deputy Excise Commissioner had signed Ext.P9 inventory and submitted it before the Magistrate. Ext.P9 bears a seal showing the certificate of inventory issued by the learned Magistrate after verifying the can produced before him. 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. Ext.P9 inventory is signed by the Deputy Excise Commissioner, the authorised officer. However, on a bare perusal of Ext.P9 inventory, it can be found that it was prepared by PW1 Preventive Officer and produced by him before the Deputy Excise Commissioner. 25. Section 53A(2) of the Act mandates that the inventory shall be prepared by the authorised officer. Of course, it is not necessary Crl.R.P.No.889/2014 8 that he shall prepare the inventory in his own handwriting or that the physical act of writing or making it shall be done by himself. But, he shall be the author of the inventory prepared. He shall not simply adopt the inventory prepared by the detecting officer and mechanically sign it and submit it before the Magistrate for certification. It is for the authorised officer to consider and include in the inventory the particulars necessary to identify the liquor. 26. When the inventory is prepared by an officer not authorised under the Abkari Act it cannot be acted upon by the court and then the entire contraband should be produced before the court (see ## **Chandran @ Chandrasekharan v. State of Kerala: 2016 (5) KHC 650: 2016(4) KLT 727** ). 27. In view of the aforesaid infirmity in the inventory certified by the learned Magistrate, it cannot be treated as primary evidence as envisaged under Section 53A(5) of the Abkari Act in respect of the offence allegedly committed by the petitioner. In the absence of a proper inventory prepared by the authorised officer and certified by the learned Magistrate in evidence, non-production of the bulk quantity of the liquor allegedly seized from the accused creates doubt as to its seizure. The benefit of that doubt shall go to the accused. 28. Ext.P9 inventory shows that the Magistrate has simply affixed a seal on it in the form of a certificate to the effect that the Crl.R.P.No.889/2014 9 inventory is in conformity with the material object produced. This certificate does not show that the learned Magistrate had verified whether the can produced before him had the identifying particulars given in the inventory. The practice of issuing certificates of inventory by affixing seal has been deprecated by this Court in **Balakrishna Rai** (supra). 29. The above mentioned vital aspects have not been considered by the trial court and the appellate court while appreciating the prosecution evidence. In such circumstances, the order of conviction and sentence passed against the petitioner/accused by the courts below cannot be sustained. The petitioner/accused is entitled to be acquitted. 30. Consequently, the revision petition is allowed. Conviction and sentence against the petitioner/accused under Section 8(1) read with 8(2) of the Abkari Act are set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him stands cancelled and he is set at liberty. ## (sd/-) **R. NARAYANA PISHARADI JUDGE** lsn True Copy PA to Judge