Bhaskaran s/o Gopalan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 29[TH] DAY OF JULY 2022 / 7TH SRAVANA, 1944 CRL.A NO. 169 OF 2014** **AGAINST THE JUDGMENT DATED 20.01.2014 IN SC 1132/2012 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, KASARAGOD / III ADDITIONAL MACT, KASARAGODE** ## **APPELLANT/ACCUSED:** BHASKARAN S/O. GOPALAN, RESIDING AT VELLIKKOTH, AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADVS. SRI.T.MADHU SMT.C.R.SARADAMANI ## **RESPONDENT/STATE:** STATE OF KERALA THROUGH THE EXCISE INSPECTOR, HOSDURG EXCISE RANGE OFFICE, KASARAGOD DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. BY.P.P.SMT.M.N.MAYA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.169 of 2014 2 **C.S.SUDHA, JJ. -----------------------------------------Crl.Appeal No. 169 of 2014 ----------------------------------------------------Dated this the 29[th] day of July, 2022** ## **J U D G M E N T** In this appeal filed under Section 374(2) Cr.P.C, the appellant who is the accused in S.C.No.1132/2012 on the file of the Sessions Court, Kasaragod, challenges the conviction entered and sentence passed against him for the offence punishable under Section 8(2) of the Abkari Act, 1077 (the Act). 2. The prosecution case is that, on 09/07/2011 at 11:45 a.m, when PW1, the then Excise Circle Inspector, Hosdurg and party were on patrol duty, they found the accused transiting 4liters of arrack in a black can having a capacity of 5 liters. The place of occurrence is alleged to be in front of the DYFI bus waiting shed at Thekkeppallam, Ravaneshwaram Settlement Colony situated on the southern side of Chalinkal -Chamanikkunnu road. Hence the accused as per the final report, is alleged to have committed the offence punishable under Section 8(2) of the Act. 3. Ext.P7 dated 09/07/2011 is the crime and occurrence report on the basis of which crime No.49/2011 of Hosdurg Excise Range was registered. PW1 is the detecting officer and PW2 is alleged to be the Preventive officer who had accompanied him. PW5, the then Excise Inspector, Excise Range, Hosdurg, Crl.Appeal No.169 of 2014 3 completed the investigation and submitted the final report before the court. 4. On appearance of the accused before the court below, copies of all the prosecution records were furnished to him. On 21/11/2013 a charge for the offence punishable under Section 8(2) of the Act was framed, read over and explained to the accused, to which he pleaded not guilty. 5. Prosecution examined PWs1 to 5 and got marked Exts.P1 to P3 in support of their case. PW1, PW2 and PW5 are the official witnesses and the remaining witnesses, namely, PW3 and PW4 are the attestors to the arrest memo and seizure memo prepared by PW1. After close of the prosecution evidence, the accused was questioned under Section 313 (1)(b) Cr.P.C with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. He denied those circumstances and maintained his innocence. He also submitted a statement in writing in which he states that he is a handicapped person with more than 50% disability; that he has not committed the offence alleged against him and that he has no connection with the contraband alleged to have been seized by the Excise officials and that he had been arrested from his house. 6. As the court below did not find it a fit case to acquit the accused under Section 232 Cr.P.C, the accused was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence has been adduced by the accused. 7. On a consideration of the oral and documentary evidence and after Crl.Appeal No.169 of 2014 4 hearing both sides, the court below by the impugned judgment convicted and sentenced the accused to undergo simple imprisonment for a period of one year and to pay a fine of ₹. 1,00,000/- and in default of payment of fine to undergo imprisonment for 3 months for the offence punishable under Section 8(2) of the Act. Set off has been allowed under Section 428 Cr.P.C. 8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the court below is sustainable or not. 9. Heard Sri.T.Madhu, the learned counsel for the appellant and Smt.M.N Maya, the learned Public Prosecutor. 10. The arguments advanced on behalf of the accused challenging the prosecution case and the findings in the impugned judgment are two fold, namely- (i) the failure on the part of the prosecution to prove Ext.P10 inventory alleged to have been prepared in this case; and (ii) the delay of two days in producing Ext.P9 forwarding note before the jurisdictional Magistrate has not been explained. PW1, deposed that on 09/07/2011 while he was working as Excise Circle Inspector, Hosdurg, he along with party were on patrol duty. While so at 11:45 a.m, when they reached the place of occurrence they found the accused with the contraband article, that is, 4 liters of arrack in a can having a capacity of 5 liters. He arrested the accused and prepared Ext.P1 arrest memo, in which he along with witnesses and the accused affixed their signature. He gave Ext.P2 arrest intimation to the wife of the accused. Crl.Appeal No.169 of 2014 5 Ext.P3 is the body note prepared by him when he arrested the accused. Thereafter he took sample from the can in which the contraband arrack was found, sealed it, affixed his signature on the same. He had prepared Ext.P5 seizure mahazar when the contraband was seized. Ext.P6 is the photograph of the sample taken. On the same day he produced the accused and the contraband articles before PW5. 11. PW2 when examined deposed that, he while working as a Preventive Officer, he had accompanied PW1 on the said day for patrol duty. He had witnessed the incident, seen PW1 arresting the accused and seizing the contraband article from the accused. PW2 also deposed that he is an attestor to Ext.P5 seizure mahazar prepared by PW1. 12. PW3 deposed that he is an attestor to Ext.P1 arrest memo prepared by the police. However, he turned hostile and denied having seen PW1 and party arresting the accused or seizing the contraband article from the accused. He denied having given any such statement to the Investigating Officer in this case. PW4 deposed that he is also an attestor to Ext.P1 arrest memo and Ext.P5 seizure mahazar prepared by the Excise officials. However, he denied having seen the incident or PW1 seizing the contraband article from the accused or giving a statement to the said effect to the Investigating Officer. 13. Finally PW5, when examined deposed that, while he was working as Excise Inspector, Excise Range Hosdurg, on 09/07/2011 PW1 had handed over the accused, the contraband article along with the connected records, on the basis of Crl.Appeal No.169 of 2014 6 which he prepared Ext.P7 crime and occurrence report and registered crime No.49/2011 of Hosdurg Excise Range for the offence punishable under Section 8(2) of the Act. He prepared Ext.P8 property list and produced the same along with the accused and the remand report before the court. Ext.P9 is the forwarding note submitted before the court. The contraband article minus the sample was produced by him before the Deputy Excise Commissioner and Ext.P10 inventory report was prepared. Thereafter he conducted the investigation in this case, proceeded to the scene of occurrence, prepared Ext.P11 scene mahazar, Ext.P12 sketch and recorded the statement of the witnesses. Ext.P13 is the Chemical Analysis Report. Thereafter he completed the investigation and submitted the final report before the court. ## 14. Section 53A of the Abkari Act reads - _“_ _**53 A. 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_ Crl.Appeal No.169 of 2014 7 _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 sub sections (2) and (4) and certified by the Magistrate, as primary evidence in respect of such offence”_ _(Emphasis supplied)_ Crl.Appeal No.169 of 2014 8 ## 15. Sub-section (1) of Section 67 B reads- “ _**67B. Confiscation by Abkari Officers in certain cases.-** (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, where any liquor, intoxicating drug material, still, utensil, implement or apparatus or any receptacle, package or covering in which such liquor, intoxicating drug material, still, utensil, implement or apparatus is found on any animal, cart, vessel, or other conveyance used in carrying the same is 74 and detained under the provisions of this Act, the officer, seizing and detaining such property shall, without any unreasonable delay, produce the same before an officer authorised by the Government in this behalf by notification in the Gazette, not being below the rank of an Assistant Excise Commissioner (hereinafter referred to as the authorised officer.)_ - _(2) xxxxxxxxxxxxxxxxx_ (3) _xxxxxxxxxxxxxxxxx " (Emphasis supplied)_ 16. PW5 is the Investigating Officer in this case. However, PW5 feigns ignorance relating to the author of Ext.P10 inventory report. In the cross examination, PW5 deposed that Ext.P10 had not been prepared by him; that Ext.P10 is not prepared in his handwriting; that he does not know in whose handwriting Ext.P10 has been prepared; that Ext.P10 contains his signature; that Ext.P10 does not reveal as to the date on which the Deputy Excise Commissioner had signed in Ext.P10 inventory list. The statement given by PW5 is a completely irresponsible statement. If he was unaware as to who had prepared Ext.P10 inventory report, then what sort of investigation has he conducted in this case? 17. Here, I refer to the decision in **Balakrishna Rai v. State of Kerala, 2020 (3) KHC 286** submitted on behalf of the accused in this case. In this case, it Crl.Appeal No.169 of 2014 9 has been held that the very purpose of the provisions contained in Section 53A of the Act is disposal of large quantity of seized contraband liquor immediately after the seizure on retaining evidence regarding its seizure. If the authorized officer and the Magistrate follow the mandate under Section 53 A of the Act strictly and scrupulously, it is not necessary for the prosecution to produce the bulk quantity of seized material before the court during the trial of the case and mark it as material object. The certificate issued by the Magistrate in respect of the inventory of liquor and the list of samples drawn in specific shall be treated as primary evidence of the said offence. However, when the procedure under Section 53-A 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 become a doubtful manner and the accused would then be entitled to take advantage of such doubt. 18. Ext.P10 inventory becomes primary evidence as contemplated under Sub-section (5) of Section 53 A only if the procedure contemplated under the Section is strictly followed. In this case, the Investigating Officer does not even know the person who prepared Ext.P10 inventory list. The contraband article alleged to have been seized has also not been produced before the court. Hence, in these circumstances, it can only be held that the prosecution has failed in establishing the case beyond reasonable doubt and so the accused is entitled to the benefit of doubt. Crl.Appeal No.169 of 2014 10 In the result, the appeal is allowed. The conviction and sentence of the appellant/accused for the offence punishable under Section 8(2) of the Act is set aside and he is acquitted under Section 235(1) Cr.P.C. His bail bond shall stand cancelled and he shall be set at liberty forthwith. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **C.S.SUDHA JUDGE** Jms/25.07