Abdul Hameed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 10TH DAY OF JUNE 2020 / 20TH JYAISHTA, 1942** **Crl.Rev.Pet.No.94 OF 2012** **AGAINST THE JUDGMENT IN CRL.APPEAL NO.196/2010 COURT OF SESSION, KASARAGOD DATED 08.12.2011** **SC NO.478/2007 DATED 29-05-2010 OF ASSISTANT SESSIONS JUDGE, KASARAGOD** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **ABDUL HAMEED AGED 33 YEARS, S/O.ANDUNHI, KAMBAR HOUSE, POOKATTA, DANDAGOLI, KIDOOR VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT.** **BY ADVS. SRI.M.RAMESH CHANDER (SR.) SRI.ANEESH JOSEPH** ## **RESPONDENTS/COMPLAINANT AND STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31.** **SMT.MAYA M.N. PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05.06.2020, THE COURT ON 10.06.2020 PASSED THE FOLLOWING:** Crl.R.P.No.94/2012 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.94 of 2012 ------------------------------------------Dated this the 10[th] day of June, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.478/2007 on the file of the Court of the Assistant Sessions Judge, Kasaragod. 2. The prosecution case, as unfolded during the trial, is as follows: On 17.06.2006, PW1 Sub Inspector was conducting patrol duty with police party. At about 11.35 hours, he got reliable information that arrack was being transported in the autorickshaw KL-14B-244 through Shantipallam-Kottekkar road. At about 11.45 hours, when he reached the place Jappa with police party, he saw the autorickshaw KL-14B-244 parked at the side of the road. He saw the petitioner/accused taking a sack from the autorickshaw and placing it in the nearby bush. On Crl.R.P.No.94/2012 3 hearing the sound of the police jeep, the accused tried to escape by running away from the place. The police party followed him and apprehended him. PW1 inspected the autorickshaw. He saw a plastic sack on the rear seat of that vehicle. PW1 opened the sack and inspected it. It contained several packets, each packet containing 100 ml. of arrack. PW1 opened one of the packets and examined the liquid in it. By taste and smell he was convinced that it was arrack. PW1 arrested the accused at 12.15 hours. Thereafter, he examined the contents of the sack put by the accused in the bush. It also contained packets containing arrack. The two sacks contained a total of 1000 packets, each packet containing 100 ml. of arrack. PW1 took the liquid from six packets in two bottles as samples, each bottle containing 300 ml. of liquid. He sealed the sample bottles and affixed label on them, bearing his signature and also the signature of the witnesses and the accused. He put the remaining packets in the two sacks, 500 packets in one sack and 494 packets in the other sack. He wrapped the empty six packets, from which sample was taken, Crl.R.P.No.94/2012 4 with a paper and sealed it. PW1 seized the properties as per Ext.P2 mahazar. 3. On returning to the police station, PW1 registered Ext.P3 first information report. Thereafter, he conducted the investigation of the case. He went to the scene of the incident on the same day and prepared Ext.P4 scene mahazar at 15.30 hours. He interrogated the witnesses and recorded their statements. He produced the sample bottles in the court as per Ext.P5 property list and also submitted Ext.P6 forwarding note for sending the samples for chemical examination. He produced the remaining properties before the Assistant Excise Commissioner. PW1 produced the accused before the court on 18.06.2006. On 17.12.2006, PW4 Sub Inspector took over the investigation and he filed final report against the accused for the offence punishable under Section 8(2) of the Abkari Act, 1077 (hereinafter referred to as 'the Act'). 4. The trial court framed charge against the petitioner for the offence punishable under Section 8(2) of the Act. The Crl.R.P.No.94/2012 5 petitioner pleaded not guilty and claimed to be tried. 5. The prosecution examined PW1 to PW4 and marked Exts.P1 to P8 series documents. The petitioner/accused took the plea that he was falsely implicated in the case by the police. No evidence was adduced by him. 6. The trial court found the petitioner guilty of the offence punishable under Section 8(2) of the Act and convicted him thereunder. The trial court sentenced him to undergo rigorous imprisonment for a period of three years and also to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of six months. 7. The petitioner filed Crl.A.No.196/2010 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. 8. The concurrent verdicts of guilty, conviction and sentence made against him by the courts below are challenged by the Crl.R.P.No.94/2012 6 accused in this revision petition. 9. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records. 10. PW1 Sub Inspector, who detected the offence, has given evidence regarding the occurrence in detail. The independent witness, who was examined as PW2, did not support the prosecution case. PW3 is only an attestor to Ext.P4 scene mahazar. PW4 is the Sub Inspector who filed final report in the case. 11. Ext.P7 is the chemical analysis report in respect of the samples of liquid which were sent to the laboratory for examination. It shows that the two samples of liquid contained ethyl alcohol of different strengths. 12. Learned counsel for the petitioner contended that the conviction entered against the petitioner cannot be sustained for the following reasons: (1) There was delay in producing the samples before the court and the delay is not explained by the prosecution. (2) The bulk quantity of the contraband liquor Crl.R.P.No.94/2012 7 allegedly seized from the possession of the petitioner was not produced before the court and marked as material object during the trial. (3) The inventory certified by the learned Magistrate was not prepared by the authorised officer and therefore, it cannot be accepted as evidence in respect of the offence allegedly committed. (4) The inventory certified by the learned Magistrate is not proper and it cannot be treated as primary evidence in respect of the offence as envisaged under Section 53A(5) of the Act. 13. The occurrence was on 17.06.2006. Ext.P5 property list reveals that the samples were produced in the court only on 19.06.2006. PW1 has not shown any reason or offered any explanation for the delay in producing the samples before the court. 14. True, the delay in producing the samples before the court was very short. Nevertheless, it remains unexplained. Law only insists that the seizure of the property should be forthwith reported to the Court. But that does not mean that the detecting Crl.R.P.No.94/2012 8 or investigating officer can produce the property leisurely, particularly when the nature and contents of the property can be convincingly established only by chemical analysis, through expert opinion (See **Ravi v. State of Kerala : 2011(3) KHC 121 : 2011(3) KLT 353** ). 15. During the cross examination, the attention of PW1 was invited to the fact there was delay in producing the samples in the court. Even then, he did not state that the samples were kept in the police station till they were produced in the court. In fact, he did not give any evidence as to where the samples were kept till they were produced in the court. 16. Even assuming that the samples were kept in the police station till they were produced in the court, there is no evidence as to the manner in which they were kept in the police station. When the prosecution alleges that the contraband substance was kept in the police station, there shall be necessary evidence to prove as to how and in what conditions it was preserved at the police station (See **State of U.P v. Hansraj @ Hansu: (2018)** Crl.R.P.No.94/2012 9 ## **18 SCC 355)** . 17. Learned Public Prosecutor has submitted that inventory of the liquor was prepared by the authorised officer and it was certified by the Magistrate concerned and therefore, it was not necessary to produce the bulk quantity of liquor before the trial court. 18. If the seizure of the contraband substance is otherwise proved on record and is not even doubted or disputed, the entire contraband material need not be placed before the Court. If the seizure is otherwise proved, what is required to be proved is the fact that samples taken from and out of the contraband material were kept intact and that the seals were intact when the samples were submitted for forensic examination and that the report of the forensic experts shows the potency, nature and quality of the contraband material and that the essential ingredients constituting an offence are made out based on such material (See **State Rajasthan v. Sahi Ram : AIR 2019 SC 4723** ). If the seizure is otherwise not in doubt, there is no requirement Crl.R.P.No.94/2012 10 that the entire material shall be produced before the Court during the trial of the case and marked as material object [See **Than Kunwar v. State of Haryana: 2020 (1) KLD 476 (SC) : 2020 (2) KLT OnLine 1135 (SC)** ]. 19. Section 53A of the Act deals with preparation of inventory, by the authorised officer, of the liquor or other articles seized under the Act and certification of the inventory by the Magistrate concerned. Section 53A(5) of the 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. 20. The State Government has issued notification SRO No.740/2002 as G.O.(P) No.139/2002/TD dated 19.09.2002 in exercise of the powers conferred by Section 53A(1) of the Abkari Act. As per this notification, spirit, Indian Made Foreign Liquor and arrack are the three kinds of liquor specified to be disposed of by the authorised officer as provided in Section 53A of the Act. Crl.R.P.No.94/2012 11 21. Section 53A of the Act comes into play when the liquor seized under the Act has to be disposed of by the authorised officer immediately after its seizure. In such cases, the authorised officer shall prepare an inventory of such liquor. The inventory so prepared shall contain necessary details which are relevant to identify the liquor in any proceedings under the Act. The authorised officer shall then make an application to the Magistrate concerned for any of the following three purposes, namely, (a) certifying the correctness of the inventory so prepared; or (b) taking photographs of the liquor in the presence of the Magistrate and to certify such photographs as true; or (c) to allow drawing of representative samples of the liquor in the presence of the Magistrate and to certify the correctness of any list of samples so drawn. The certificate so issued by the learned Magistrate shall be treated as primary evidence during the trial in respect of the offence. 22. The very purpose of the provisions contained in Section 53A of the Act is disposal of large quantity of seized contraband Crl.R.P.No.94/2012 12 liquor immediately after the seizure on retaining evidence regarding its seizure. If the authorised officer and the Magistrate follow the mandate under Section 53A of the Act strictly and scrupulously, it is not necessary for the prosecution to produce the bulk quantity of seized liquor before the Court during the trial of the case and mark it as material object. Then the certificate issued by the Magistrate in respect of the inventory of liqour and the list of samples, if any, drawn in his presence shall be treated by the court as primary evidence of the offence. 23. However, when the procedure under Section 53A of the Act is not adopted and strictly followed and when the bulk 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 or otherwise disposed of, seizure of such liquor itself becomes a doubtful matter. The accused will then be entitled to take advantage of such doubt. 24. In the instant case, the evidence of PW1 and the recitals in Ext.P2 seizure mahazar would show that PW1 had put Crl.R.P.No.94/2012 13 500 packets of arrack in one sack and 494 packets of arrack in the other sack and produced them before the Assistant Excise Commissioner along with Ext.P8(a) inventory. The Assistant Excise Commissioner signed the inventory and submitted it before the Judicial First Class Magistrate, Kasaragod. Learned Magistrate has certified the inventory by affixing a seal on it. 25. 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. A bare perusal of Ext.P8(a) inventory shows that it was prepared by PW1 Sub Inspector. The Assistant Excise Commissioner, the authorised officer, has only countersigned it. In Ext.P5 property list prepared by PW1 also it is specifically stated that the materials, other than the samples, were produced before Assistant Excise Commissioner as per the inventory prepared. ## 26. In **Chandran @ Chandrasekharan v. State of Kerala** **: 2016 (5) KHC 650: 2016 (4) KLT 727** , this Court has held that, when the inventory under sub-section (2) of Section 53A of Crl.R.P.No.94/2012 14 the Act is prepared by an officer not authorised under the Act, it cannot be acted upon and then the entire contraband should be produced before the Court. 27. Section 53A(2) of the Act mandates that the inventory shall be prepared by the authorised officer. Of course, it is not necessary 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. 28. Ext.P8(a) inventory suffers from yet another infirmity. The description of the two sacks containing packets of arrack given in the inventory shows that they were in a sealed condition. There is no recital in Ext.P2 mahazar that the two sacks were sealed at the spot of the occurrence after the packets Crl.R.P.No.94/2012 15 of arrack were put in them. PW1 has not given evidence that he sealed them at the spot of the occurrence. It leads to the inference that the sacks containing the packets of arrack were sealed at the police station before they were produced before the Assistant Excise Commissioner. 29. The property produced before the Magistrate for certification was two sealed sacks which allegedly contained a total of 994 packets of arrack. The certification of inventory by the Magistrate should have been done in respect of the packets containing the arrack, the notified liquor. 30. The learned Magistrate has certified the inventory by affixing a seal as follows: ## _**CERTIFICATE**_ _Certified that the inventory in Cr.No........... of …...........Range/PS is in conformity with/not in conformity with the material objects verified._ After affixing the aforesaid seal, learned Magistrate has filled up the blanks in the above seal with the crime number of the case Crl.R.P.No.94/2012 16 and the name of the police station and struck off the words “not in conformity” with pen and signed below it. 31. The certificate above, affixed in the form of a seal, by the learned Magistrate on Ext.P8(a) inventory, would indicate that he had not actually verified the particulars of the packets of liquor contained in the sealed sacks which were produced before him. The certificate does not reveal whether the sacks produced before the learned Magistrate contained 994 packets of liquid. There is nothing to show that the learned Magistrate had got the sealed sacks opened and that he verified their contents. 32. Recently, in the order dated 04.06.2020 in Crl.R.P.No.2143 of 2013, this Court had occasion to observe as follows: _“The practice of certifying the inventory by affixing any seal and by filling up the blank spaces in the seal has to be deprecated. The Magistrates who certify the inventory under the Abkari Act or the Narcotic Drugs and Psychotropic Substances Act have to bear in mind that the certificate being issued by them would be treated as primary_ Crl.R.P.No.94/2012 17 _evidence in respect of the offence during the trial of the case. Inventory shall be certified by the Magistrates only after carefully verifying the correctness of the particulars of the property mentioned and described in it”._ 33. In view of the infirmities pointed out above in the preparation of the inventory by the authorised officer and the certification of the inventory by the learned Magistrate under Section 53A of the Act, I find that the certificate of inventory issued by the learned Magistrate in this case cannot be treated as primary evidence in respect of the offence allegedly committed by the petitioner. In such a situation, non-production of the bulk quantity of liquor in the trial court creates doubt as to seizure of such liquor from the possession of the accused. Then, the dictum laid down by the Apex Court in **Sahi Ram** (supra) and **Than Kunwar** (supra) with regard to non-production of seized material before the trial court, does not come to the rescue of the prosecution. 34. The trial court and the appellate court have not taken into consideration the abovementioned aspects while appreciating Crl.R.P.No.94/2012 18 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. 35. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 8(2) of the Abkari Act, which stands affirmed by the appellate court, is set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. Bail bond, if any, executed by him stands cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr **True Copy** **PS to Judge**