Babu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **FRIDAY, THE 26TH DAY OF FEBRUARY 2021 / 7TH PHALGUNA, 1942** ## **CRL.A.No.751 OF 2008** **AGAINST THE JUDGMENT IN SC 943/2006 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA** ## **APPELLANT/ACCUSED:** **BABU AGED 33 YEARS S/O.KANARAN, KUNHIPARAMBATH, VELLIYODE AMSOM, KODIYORA DESOM.** **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENT/COMPLAINANT & STATE:** **1 EXCISE INSPECTOR NADAPURAM EXCISE RANGE. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1-2 BY PUBLIC PROSECUTOR SMT. SYLAJA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.751 OF 2008** **2** ## **JUDGMENT** ## **Dated this the 26[th] day of February 2021** The accused in Sessions case No.943 of 2006, has filed this appeal, being aggrieved by the judgment dated 27.3.2008 of the Additional District & Sessions Judge, Vadakara, whereby he has been found guilty of offence under Section 8(1) of the Abkari Act and has been sentenced to undergo rigorous imprisonment for one year and pay a fine of Rs.1,00,000/- and on failure to pay the fine, to undergo rigorous imprisonment for a further period of 6 months. 2. The prosecution case is that on 03.11.2004 at 5:00 P.M the accused was found in possession of 3 litres of illicit arrack in a can at Velliyode amsom Kodiyora desom, allegedly kept for the purpose of sale and that the accused has committed offence u/s 8(2) of the Abkari Act. The offence has been detected by PW1 Preventive officer and was investigated by PW6 Excise Inspector who filed the charge sheet. The J.F.C.M. **CRL.A.No.751 OF 2008** **3** Court, Nadapuram committed the case to the Court of Sessions, Kozhikode as per C.P.No.93/2006 and the Court of Sessions, Kozhikode made over the case to the Additional District and Sessions Judge, Vadakara for trial and disposal. The case was numbered as Session case 943/2006. PW1 to PW8 were examined on the side of the prosecution and Exhibits P1 to P9 were marked. The Sessions Court relied on the statement of the detecting officer and found the accused guilty and imposed the sentenced aforesaid. 3. Heard Sri.T.G.Rajendran, learned counsel for the appellant and Smt.Sylaja, learned Public Prosecutor for the respondent State. 4. The main contention advanced by the counsel for the appellant is that the procedure prescribed under Section 53A of the Abkari Act has not been followed by the prosecution while disposing of the thondy articles and that itself is sufficient to acquit the appellant. It is pointed out that Ext.P7 certificate issued by the J.F.C.M, Nadapuram under Section 53A is prepared only on 23.12.2004, more than one and a half months after **CRL.A.No.751 OF 2008** ## **4** the alleged date of offence. It is hence contended that Ext.P7 cannot be considered as primary evidence of the offence, under Section 53A(5). 5. Ext.P1 would show that the accused was arrested on 3.11.2004 by the Preventive Officer of Nadapuram Police Station. Ext.P2 scene mahazar has been prepared on 3.11.2004. Ext.P3 Crime and occurrence report prepared by the Excise Officer, Nadapuram is also dated 3.11.2004. Ext.P4 is the list of sample articles produced before the J.F.C.M, Nadapuram which shows that 180 ml of sample arrack in a bottle is the object which was produced. The documents contain the signature and seal of the Excise Inspector, Nadapuarm. Ext.P5 is the letter addressed by the Excise Inspector, Nadapuram to the Joint Chemical Examiner of the Regional Chemical Laboratory, Kozhikode requesting the analysis of the sample. Though the request is seen signed by the forwarding officer on 3.11.2004, it has been countersigned by the Magistrate only on 9.11.2004. The Sample is also seen to have been forwarded only on 9.11.2004, after 6 days. Ext.P6 purports to be an **CRL.A.No.751 OF 2008** ## **5** application submitted by the Assistant Excise Commissioner, Kozhikode before the J.F.C.M, Nadapuram under Section 53A requesting to certify the correctness of the inventory of the seized articles of 2.820 litres of arrack in a 5 litre capacity black plastic can (sealed). It can be seen from Ext.P6 that the application was signed by the Assistant Excise Commissioner only on 23.11.2004 even though the seizure was on 3.11.2004. A reading of the document also shows that the inventory was actually not prepared by the said officer and he has merely listed out the articles that had been produced before him by the detecting officer, in a sealed state. It can further be seen that the request was received at the J.F.C.M Court, Nadapuram only on 3.12.2004. Ext.P7 is the certificate issued by the J.F.C.M, Nadapuram u/s 53(A) which again shows that the Magistrate had merely filled in the number of the crime and the date of examination in a printed form and has not verified the article after removing the seal. Admittedly, the sample that was sent for chemical examination was not collected in the **CRL.A.No.751 OF 2008** **6** presence of the Magistrate as required under Section 53A. There is a delay of one month from the date of preparation of the inventory by the officer and the date of certification by the Magistrate. So also, even in the case of the sample sent for analysis, there is a delay of 6 days. No effort has been taken by the prosecution to explain the delay that has occurred. 6. A reading of Section 53A would show that on seizure of the liquor, the authorized officer is duty bound to prepare an inventory showing the details of the seized articles and to make an application to any Magistrate having jurisdiction of the area, for the purpose of certifying the correctness of the inventory so prepared, or for the purpose of taking, in the presence of such Magistrate, photographs of such liquor etc. and certifying the photographs as such or for the purpose of allowing to draw representative samples of the seized articles in the presence of the Magistrate and certifying the correctness of the list of samples. It is the contention of the appellant that none of the above procedures have been followed in the instant **CRL.A.No.751 OF 2008** **7** case. It is further contended that going by subsection(5) of Section 53(A), the inventory, the photographs of such liquor and any list of samples drawn under sub-Sections (2) and (4) of Section 53(A) and certified by the Magistrate, is to be treated as primary evidence in respect of the offence. According to the counsel since the procedure under Section 53(A) has not been followed, the list of inventory cannot be treated as primary evidence in respect of the offence and hence the appellant is entitled to be acquitted. 7. In the judgment 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. In the said case also, the authorised officer had reproduced the list of articles produced before him by the detecting officer as the list of inventory and the Magistrate had certified it without actual verification of the contents and the **CRL.A.No.751 OF 2008** **8** certificate is also issued by merely filling in a few details. This court deprecated such practice and observed that the certification is for the purpose of treating the inventory list as primary evidence and hence the procedure prescribed should be scrupulously followed. This Court also found that the sample that had been analysed was not the sample drawn in the presence of the magistrate. The learned Judge had in the circumstances acquitted the accused. On going through the judgment in **Balakrishna Rai (Supra),** I am of the opinion that the dictum in the said decision squarely applies to the facts of this case as well. Apart from the infirmities pointed out in **Balakrishna** **Rai (supra),** in the case on hand, there is also the element of delay both regarding the certification of the inventory as well as regarding the forwarding of the sample, which has not been explained satisfactorily. 8. In the result, the judgment dated 27.3.2008 of the Additional District & Sessions Judge, Vadakara, in Sessions Case No.943 of 2006 is set aside. The **CRL.A.No.751 OF 2008** **9** appellant is acquitted and set at liberty. Bail bonds if any executed by the appellant or on his behalf are cancelled. The appeal is allowed. **Sd/-** **T.R.RAVI, JUDGE** ## **VKD**