Appachan, S/O Chacko v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942** ## **CRL.A.No.1045 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 25/2006 DATED 24-05-2007 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA** **AGAINST THE ORDER/JUDGMENT IN CP 42/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS, ADIMALI** ## **APPELLANT/ACCUSED:** **APPACHAN, S/O. CHACKO, PUTHENPURACKAL HOUSE, PAZHAMBILLICHAL, KAMBILINE KARA, MANNAMKANDUM VILLAGE, DEVIKULAM TALUK.** ## **BY ADV. SRI.SOJAN MICHEAL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY SMT. SYLAJA P.P.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.1045 OF 2007** **2** ## **JUDGMENT** The accused in S.C.No.25/2006 on the file of the Additional Sessions Court (Adhoc II), Thodupuzha has filed this appeal, being aggrieved by judgment dated 24.05.2007, whereby he has been found guilty of offence punishable under Section 55(g) of the Abkari Act and has been sentenced to undergo rigorous imprisonment for 2 years and fine of 1,00,000/- and₹ in default of payment of fine, to undergo rigorous imprisonment for a further period of 3 months. 2. According to the prosecution, on 29.10.2003 at about 7.00 a.m., the accused was found in a property alleged to be his own, situated in Pazhampillichal Kampi line Kara in Mannamkandam Village, in possession of 100 litres of wash and necessary utensils for distillation of arrack. The offence was detected by the Excise Inspector, Adimaly, who has been examined as PW4. The detecting officer seized the contraband articles, arrested the **CRL.A.No.1045 OF 2007** **3** accused and registered a crime as Crime No.27/2003. After completion of investigation, final charge was laid before the Judicial First Class Magistrate Court, Adimaly and the learned Magistrate committed the case to the Court of Sessions, Thodupuzha. The case was taken on file in the Court of Sessions, Thodupuzha and was made over to the Additional Sessions Judge (Adhoc II) Thodupuzha for trial. The case was numbered as S.C.No.25/2006. 3. During the trial, the prosecution examined 4 witnesses and marked Exts.P1 to P9 and material objects 1 to 3. The accused, during Section 313 Cr.P.C. Questioning, stated that on 29.10.2003, the Excise party trespassed into his house and conducted a search and that they did not get any contraband articles from his house. It is further stated that at about 8.00 a.m., on the next day, the Excise party took the accused from his house and foisted a case against him. The Court below accepted the prosecution evidence and found the accused guilty **CRL.A.No.1045 OF 2007** **4** and imposed the sentence as aforesaid. Aggrieved by the judgment of the court below and the sentence imposed on him, the accused has filed this appeal. 4. Heard Sri.Sojan Micheal, learned counsel for the appellant and Smt.Shylaja, learned Public Prosecutor on behalf of the State. 5. The learned counsel for the appellant contended that the property from which the contraband articles were seized belongs to one Kalappurackal Mathews and that admittedly the accused has only a property of an extent of 2 cents. It is his case that the Investigating Officer has not conducted any enquiry to find out whether the property from where the contraband article was taken custody of, belongs to the appellant. Even though several contentions have been advanced by the counsel for the appellant, he is entitled to succeed on the ground that the prosecution did not follow the procedure prescribed in Section 53A of the **CRL.A.No.1045 OF 2007** **5** Abkari Act. Section 53A reads thus: _“_ _**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_ **CRL.A.No.1045 OF 2007** **6** _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 subsection (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_ **CRL.A.No.1045 OF 2007** **7** _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.”_ 6. The above Section was inserted by Act 1 of 2003 with effect from 03.09.2002. In the case on hand, the offence has taken place allegedly on 29.10.2003. As such the Investigating Officer was bound to follow the prescribed procedure under Section 53A for the purpose of disposal of seized articles. 7. Going by Section 53A, the concerned officer has to prepare an inventory of the articles that have been seized as contraband articles and **CRL.A.No.1045 OF 2007** **8** thereafter make an application before any Magistrate having jurisdiction over the area for the purpose of certifying the correctness of the inventory, etc. When the application is so made, the Magistrate shall visit the place where the contraband articles are stored and take appropriate steps as specified in Clauses (a), (b) & (c) of Sub-Section (2) and allow the application. Under Sub Section (5), the inventory so prepared and certified by the Magistrate is to be treated as primary evidence in respect of the offence. In the case on hand, admittedly the Excise Inspector at Adimaly Range, who had detected the offence, has stated in his request for forwarding the sample for chemical examination that during the detection of the offence, a sample of 500 ml of wash was taken from the spot and the balance of about 99½ litres were destroyed at the scene of occurrence itself. Thus it can be seen that, except the sample nothing else is available to link the Thondi articles and the **CRL.A.No.1045 OF 2007** **9** article which has been examined by the chemical examiner. It has been held by this Court in several judgments that the requirements under Section 53A are mandatory and have to be followed when the concerned officer is disposing of seized articles. In **Balakrishna Rai v. State of Kerala** reported in **[2020(3)KHC 286],** this Court has held that in the absence of non-production of bulk quantity seized, coupled with failure to follow the procedure prescribed in Section 53 A, the seizure itself becomes doubtful and the accused will be entitled to take advantage of the doubt. Moreover, it is the certified inventory list that has be the primary evidence of the offence as per the section. Such primary evidence also will not be available. Admittedly, in the case on hand, the procedure under Section 53A has not been followed and the certified inventory list is not marked in evidence. The appellant is hence entitled to succeed. **==> picture [408 x 12] intentionally omitted <==** **CRL.A.No.1045 OF 2007** **10** the judgment of the Additional Sessions Court, Adhoc II, Thodupuzha in S.C.No.25/2006 dated 24.05.2007 is set aside. The appellant is acquitted and set at liberty. Bail bond, if any, executed by the appellant or on bis behalf are cancelled. At the time of admission of the appeal, this Court had directed the accused to deposit a sum of 5,000/-₹ before the court below for the purpose of suspending the sentence. Since the accused is acquitted, the accused may approach the court below for refund the deposit made as directed by this Court. **Sd/-** ## **T.R.RAVI, JUDGE** **Pn**