Crl.Rev.Pet.No.2648 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 03RD DAY OF AUGUST 2020 / 12TH SRAVANA, 1942** **Crl.Rev.Pet.No.2648 OF 2011** **AGAINST THE JUDGMENT IN CRA 172/2009 DATED 17-09-2011 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC-II)KASARAGOD** **AGAINST THE JUDGMENT IN SC 572/2006 DATED 18-06-2009 OF ASSISTANT SESSIONS COURT, KASARAGOD** ## **PETITIONER/APPELLANT/ACCUSED:** **C.ASHOKAN, AGED 31 YEARS, S/O.CHANDRAN, R/AT NELAKALA COLONY, VIDYANAGAR, KASARAGOD DISTRICT.** **BY ADV. SRI.S.JIJI** ## **RESPONDENT/COMPLAINANT/STATE:** **STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR KASARAGOD EXCISE RANGE, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29.07.2020, THE COURT ON 03.08.2020 PASSED THE FOLLOWING:** Crl.R.P.No.2648/2011 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.2648 of 2011 ----------------------------------------Dated this the 3[rd] day of August, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.572/2006 on the file of the Court of the Assistant Sessions Judge, Kasaragod. 2. The prosecution case is that, on 23.09.2004, at about 16.00 hours, at Nelakkala Colony Road in Kasaragod Municipality, PW1 Excise Circle Inspector found the petitioner/accused in possession of a plastic bag containing 50 plastic covers, each cover having the capacity of 100 ml, full of arrack. 3. The trial court framed charge against the petitioner for the offence punishable under Section 55(a) of the Abkari Act. The petitioner pleaded not guilty to the offence and claimed to be tried. Crl.R.P.No.2648/2011 3 4. The prosecution examined PW1 to PW4 and marked Exts.P1 to P10 documents. No evidence was adduced by the accused. 5. The trial court found the petitioner guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted him thereunder. The trial court sentenced him to undergo rigorous imprisonment for a period of two 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. 6. The petitioner filed Crl.A.No.172/2009 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. 7. The concurrent verdicts of guilty, conviction and sentence made against him by the courts below are challenged by the accused in this revision petition. 8. Heard. Perused the records. Crl.R.P.No.2648/2011 4 9. PW1 Excise Circle Inspector, who detected the offence, has given evidence regarding the occurrence in detail. The independent witness, who was examined as PW3, did not support the prosecution case. PW2 is the the Preventive Officer, who was in charge of the Excise Inspector of Ksaragod Excise Range Office, who registered the case against the accused. PW4 is the Excise Inspector who conducted the investigation of the case. 10. Ext.P9 is the chemical analysis report in respect of the sample of liquid which was sent to the laboratory for examination. It shows that the sample of liquid contained 33.65% by volume of ethyl alcohol. 11. After perusing the evidence adduced by the prosecution and the judgments of the courts below, I find it difficult to sustain the conviction entered against the petitioner. The reasons are as follows. 12. PW1 has given evidence regarding the seizure of the packets of arrack from the possession of the accused and the drawing of sample at the spot of the occurrence. He has stated Crl.R.P.No.2648/2011 5 that he entrusted the accused and the records and the seized articles at the Kasaragod Excise Range Office. PW2, who was in charge of the Excise Inspector of the excise range office, has given evidence that he registered Ext.P6 crime and occurrence report. He has also given evidence that he produced the properties in the court as per Ext.P7 property list. Ext.P7 list would show that only the sample was produced before the court. It is seen from the records that the sealed plastic bag, which allegedly contained 47 plastic covers containing the liquid and three empty plastic covers from which sample was taken, was produced before the Assistant Excise Commissioner on 11.11.2004 by PW4 Excise Inspector as per Ext.P5 inventory list. 13. The 47 plastic covers containing the liquid, after taking sample, were not produced before the trial court and not marked in evidence as material object. 14. Learned Public Prosecutor has submitted that Ext.P5 inventory of the liquor was prepared by the authorised officer and it was certified by the Magistrate concerned under Section 53A of the Abkari Act and therefore, it was not necessary to Crl.R.P.No.2648/2011 6 produce the bulk quantity of liquor before the trial court. 15. 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. 16. If the authorised officer has properly prepared the inventory and the Magistrate concerned has certified it as correct after proper verification, it is not necessary to produce the bulk quantity of liquor seized under the Act before the trial court. The very purpose of the provision contained in Section 53A of the Act is disposal of large quantity of seized contraband liquor immediately after the seizure on retaining evidence regarding the seizure. Crl.R.P.No.2648/2011 7 17. 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 had 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 (See **Balakrishna Rai v. State of Kerala : 2020(3) KHC 286 : 2020 (3) KLT 723** ) 18. In the instant case, the evidence of PW1 and the recitals in Ext.P4 seizure mahazar would show that PW1 had put 47 covers containing arrack and the three empty covers in the plastic bag and sealed the plastic bag. According to the prosecution, it is this plastic bag which was produced before the Assistant Excise Commissioner along with Ext.P5 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. Crl.R.P.No.2648/2011 8 19. A bare perusal of Ext.P5 inventory shows that it was prepared by PW4 Excise Inspector. In fact, it is specifically stated in Ext.P5 inventory that it was prepared by the Excise Inspector. The Excise Inspector has also signed it. The Assistant Excise Commissioner, the authorised officer, has only put his signature in it. 20. 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. 21. In **Chandran @ Chandrasekharan v. State of Kerala : 2016 (5) KHC 650 : 2016 (4) KLT 727** , this Court has held as follows : Crl.R.P.No.2648/2011 9 _“Sub-section (1) of Section 53A of the Abkari Act provides that the authorised officer under Section 53A of the Abkari Act is the authorised officer referred to in Section 67B of the Abkari Act. Section 67B provides that the authorised officer must be an officer authorised by the Government by notification in the Gazette and the said officer is an officer not below the rank of an Assistant Excise Commissioner. SRO No. 671/75 provides that the Assistant Commissioners in charge of Excise Divisions are authorised officers under sub-section (1) of Section 67B of the Abkari Act for the purpose of Section 67B within their respective jurisdiction. In this case, PW1 was admittedly not an authorised officer under Section 67B of the Abkari Act. Therefore, he was not an authorised officer competent to prepare the inventory under sub-section (2) of Section 53A of the Abkari Act. Since Ext.P7(a) was prepared by an officer not authorised under the Abkari Act, Ext.P7(a) cannot be acted upon as the same is patently illegal. When Ext.P7(a) cannot be acted upon, the entire contraband should have been produced before the Court. However, in this case, the contraband articles were not produced before the Court and instead of that, the prosecution relied on Ext.P7(a) inventory, which is patently illegal and consequently, the revision petitioner is entitled to acquittal”._ 22. The situation in the present case with regard to Ext.P5 inventory is identical as mentioned above in **Chandran** (supra). Crl.R.P.No.2648/2011 10 23. Ext.P5 inventory shows that the Magistrate has simply affixed a seal on it in the form of a certificate to the effect that the inventory is in conformity with the material object produced. This certificate does not show that the learned Magistrate had verified whether the sealed plastic bag produced before him contained 47 packets of liquid. There is nothing to show that the learned Magistrate had got the sealed plastic bag opened and that he verified its contents. The practice of issuing certificates of inventory by affixing seal has been deprecated by this Court in **Balakrishna Rai** (supra). 24. In view of the infirmity in the inventory certified by the learned Magistrate, it cannot be treated as primary evidence as envisaged under Section 53A(5) of the Abkari Act in respect of the offence allegedly committed by the petitioner. 25. The trial court as well as the appellate court has not taken into consideration the defect in Ext.P5 inventory and also the certificate of inventory issued by the learned Magistrate. Since Ext.P5 inventory is defective, in the light of the decision in **Chandran** (supra), the conviction entered against the Crl.R.P.No.2648/2011 11 petitioner/accused cannot be sustained. The petitioner/accused is entitled to be acquitted. 26. Consequently, the revision petition is allowed. Conviction and sentence against the petitioner/accused under Section 55(a) 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** jsr True Copy PS to Judge