Biju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 01ST DAY OF JULY 2020 / 10TH ASHADHA, 1942** **Crl.Rev.Pet.No.1295 OF 2013** **AGAINST THE JUDGMENT IN CRA 12/2013 DATED 27-03-2013 OF ADDITIONAL SESSIONS COURT (ADHOC), THODUPUZHA** **AGAINST THE JUDGMENT IN SC 319/2010 DATED 19-12-2012 OF ASSISTANT SESSIONS COURT,THODUPUZHA** ## **PETITIONER/APPELLANT/ACCUSED:** **BIJU AGED 37 YEARS S/O KUNJAN, THANIKKUZHIYIL HOUSE, MULLIRINGADU KARA, VANNAPPURAM VILLAGE, THODUPUZHA, IDUKKI DISTRICT.** **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENT/STATE/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031.** ## **SMT MAYA M N -PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23.06.2020, THE COURT ON 01.07.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.1295 OF 2013** **2** ## **R. NARAYANA PISHARADI, J** **-------------** ----------------------------------- ## **Crl.R.P. No. 1295 of 2013** ------------------------------------------------Dated this the 1[st] day of July, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C No.319/2010 on the file of the Court of the Assistant Sessions Judge, Thodupuzha. 2. The prosecution case is as follows: On 26.10.2009, when the Preventive Officer (PW1) of the Excise Range Office, Thodupuzha was conducting patrol duty with excise party, he received information that the accused was conducting sale of liquor in his house. PW1 prepared search memo and sent it to the court. Thereafter, he proceeded to the house of the accused with excise party. When he reached near the aforesaid house, he saw the accused standing at the verandah of the house with a bottle containing liquid and an ounce glass. Two other persons were drinking some liquid from the glass in their hands. On seeing the excise party, the aforesaid two persons abandoned the glass and ran away and escaped from there. PW1 inspected the bottle and the glass held by the accused. By the taste and smell of the liquid contained in the bottle, PW1 was convinced that **Crl.Rev.Pet.No.1295 OF 2013** **3** it was liquor. On examining the glasses abandoned by the two persons, it was found that the glasses had the smell of liquor. On conducting search of the house, another bottle containing liquor was also found. PW1 arrested the accused and took samples from the two bottles and sealed the sample bottles and the liquor bottles and affixed label on them and seized them. It is alleged by the prosecution that the accused had conducted sale of liquor in his house without any authority. 3. The trial court framed charge against the accused for the offence punishable under Section 55(i) of the Abkari Act. The accused pleaded not guilty to the offence and he claimed to be tried. 4. The prosecution examined PW1 to PW7 and marked Exts.P1 to P15 documents and MO1 series currency notes as material objects. DW1 was examined on the side of the accused. 5. The trial court found the petitioner guilty of the offence punishable under Section 55(i) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. 6. The petitioner filed Crl.A.No. 12/2013 before the Court of Session, Thodupuzha, challenging the order of conviction and sentence **Crl.Rev.Pet.No.1295 OF 2013** **4** 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 findings of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. 8. Heard learned counsel for the petitioner and also the learned Public Prosecutor. Perused the records. 9. Learned counsel for the petitioner contended that, even if the entire prosecution case is accepted as true, it would only prove that the accused and two other persons were found drinking liquor in the house of the accused. It is contended that mere drinking of liquor in the house is not prohibited by law. Learned counsel would contend that there is no evidence to find that sale of liquor was conducted by the petitioner or that he had stored liquor for sale. 10. PW1 is the Preventive Officer who detected the offence. He has given evidence regarding the occurrence in detail. PW2 is the independent witness examined by the prosecution. He supported the prosecution case. He has given evidence that he had accompanied the excise party and when they reached the house of the accused, he saw the accused giving liquor to two persons. **Crl.Rev.Pet.No.1295 OF 2013** **5** 11. The plea of the accused before the trial court was that he was falsely implicated in the case at the instance of PW2 on account of personal enmity which he had with the accused. DW1 was examined by the accused to prove that the excise party had taken the accused into custody from the shop conducted by the accused. The trial court as well as the appellate court has rejected the plea made by the accused regarding false implication in the case at the instance of PW2. I find no reason to interfere with the findings made by the courts below in that regard. 12. The fact that, the accused has not been able to prove the plea of false implication in the case, does not mean that the prosecution has proved its case beyond reasonable doubt. 13. Learned counsel for the petitioner would contend that, even if the prosecution case is accepted as true, it is not sufficient to establish sale of liquor by the accused in his house. There is no merit in this contention. In order to prove sale, it is not necessary for the prosecution to establish that liquor was given by one person to another on consideration or on exchange of money. 14. Section 55(i) of the Abkari provides that, whoever in contravention of that Act or of any rule or order made under that Act, sells or stores for sale liquor or any intoxicating drug, shall be liable **Crl.Rev.Pet.No.1295 OF 2013** **6** for the punishment prescribed therein. In order to attract Section 55(i) of the Abkari Act, the prosecution has to prove that the accused either (i) sold liquor or any intoxicating drug or that he (ii) stored liquor or any intoxicating drug for sale, without any authority of law. Section 55(i) of the Abkari Act prohibits, sale of liquor and storage of the same for sale, without the sanction of law. 15. In order to prove sale of liquor, it is not necessary for the prosecution to establish that, actual exchange of money for liquor took place, at the time of detecting the alleged offence. In other words, it is not necessary that the detecting officer shall actually see the person who sells the liquor receiving money from the buyer or the buyer giving money to the seller. Sale of liquor by a person to another can be inferred from other facts and circumstances established by the prosecution. There may be cases where a person would purchase liquor on credit. The mere fact, that the detecting officer did not see the accused receiving money from another person in exchange of liquor, is not sufficient to hold that the accused did not sell liquor (See **Madhavan v. State of Kerala : 2019 (4) KHC 830: 2019 (4) KLT 18** ). 16. What is sought to be prevented by Section 55(i) of the Abkari Act is illicit sale of liquor. It is futile to contend that the offence is **Crl.Rev.Pet.No.1295 OF 2013** **7** revealed only when the detecting officer saw the accused giving liqour to another person in exchange of money. The only requirement is that the prosecution should allege and prove facts and circumstances to indicate that the accused intended an illicit sale of liquor (See **Sidhan @ Sidharthan v. State of Kerala : 2014 (2) KHC 644 : 2014 (2) KLT 893** ). 17. However, the prosecution case cannot be accepted on another ground. The liquor bottles allegedly seized by the excise party from the house of the accused were not produced before the trial court. 18. Learned Public Prosecutor has contended that it was not necessary to produce the liquor bottles before the trial court since inventory had been prepared by the authorised officer and it was certified by the learned Magistrate under Section 53A(2) of the Abkari Act. 19. 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 **Crl.Rev.Pet.No.1295 OF 2013** **8** 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 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)** ]. 20. 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. 21. 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 **Crl.Rev.Pet.No.1295 OF 2013** **9** are the three kinds of liquor specified to be disposed of by the authorised officer as provided in Section 53A of the Act. 22. 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 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, Ext.P10 is the certificate of inventory **Crl.Rev.Pet.No.1295 OF 2013** **10** issued by the learned Magistrate. It is dated 12.04.2012. In Ext.P10 certificate it is stated that it is issued on the application filed by the Deputy Excise Commissioner. Ext.P9 is the inventory marked in evidence. It is an inventory prepared by the Excise Inspector concerned. It bears the endorsement of the learned Magistrate that he verified the items mentioned therein. Therefore, it is evident that what the learned Magistrate had verified were the items mentioned in the inventory prepared by the Excise Inspector and not the Deputy Excise Commissioner, who is the authorised officer. 25. 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 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. 26. PW6 Excise Inspector has given evidence that he prepared a draft inventory and submitted it to the Deputy Excise Commissioner and that the Deputy Excise Commissioner prepared the inventory and it is Ext.P9 document. As noticed earlier, Ext.P9 is not the inventory prepared by the Deputy Excise Commissioner but it is an inventory **Crl.Rev.Pet.No.1295 OF 2013** **11** prepared by the Excise Inspector. 27. The inventory prepared by the Deputy Excise Commissioner is not seen marked in the case. But it is among the records of the trial court. I have perused it. The description of the properties given in the inventory prepared by the Deputy Excise Commissioner is as follows: “I.M.F.L - 2.500 litres (including sample), To be disposed – 2.100 litres”. This inventory prepared by the Deputy Excise Commissioner is dated 13.09.2011. The samples had been sent for chemical analysis long before that date, in the year 2009. Therefore, the description of the liquor stated in the inventory prepared by the Deputy Excise Commissioner cannot be correct. Moreover, the description of the articles given in that inventory does not show that two bottles of liquor were produced for verification by the Magistrate or that such bottles had seal and label on them. 28. In view of the infirmities pointed out above in the preparation of the inventory by the authorised officer and in view of the fact that the certificate of inventory issued by the learned Magistrate under Section 53A(2) of the Act does not relate to an inventory prepared by the authorised officer, I find that Ext.P10 certificate of inventory cannot be treated as primary evidence in **Crl.Rev.Pet.No.1295 OF 2013** **12** respect of the offence allegedly committed by the petitioner. In such a situation, non-production of the bottles 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. 29. The trial court and the appellate court have not taken into consideration the above mentioned infirmities in the inventory certified by the learned Magistrate 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 55(i) 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 is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. ## **Sd/-R. NARAYANA PISHARADI JUDGE** lsn