GIRIJA, D/o Kamalamma v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 25[TH] DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943 ## CRL.A NO. 821 OF 2015 [AGAINST THE JUDGMENT DATED 19.8.2015 IN S.C.No.507 of 2009 ON THE ## FILE OF THE ADDITIONAL DISTRICT & SESSIONS COURT-V, ## THIRUVANANTHAPURAM] (C.P.NO.192/2008 OF THE JUDICIAL FIRST CLASS MAGISTRATE’S COURT-1, ## NEYYATTINKARA) [CRIME NO.33/2008 OF THE EXCISE RANGE, AMARAVILA] ## APPELLANT/1ST ACCUSED: GIRIJA, D/O.KAMALAMMA, THUNDUVILA VEEDU, THELLUKUZHY, PAZHAMALA DESOM, PERUNKADAVILA VILLAGE, NEYYATTINKARA TALUK. BY ADV SRI.S.MOHAMMED AL RAFI ## RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2021, THE COURT ON 25.11.2021 DELIVERED THE FOLLOWING: Crl.Appeal No.821 of 2015 2 ## JUDGMENT The appellant is the 1[st] accused in S.C.No.507 of 2019 on the file of the Additional District and Sessions Court-V, Thiruvananthapuram. The petitioner has filed this appeal challenging the conviction and sentence imposed upon her as per the judgment dated 19.8.2015 therein. As per the impugned judgment, she was found guilty for the offences under Sections 8(1) & (2) and 55(g) of the Abkari Act and sentenced to undergo simple imprisonment for a period of five years each and also directed to pay a fine of Rs.3 lakhs each with a default sentence of simple imprisonment for one year for the offences under Sections 8(1)&(2) and 55(g) of the Abkari Act. 2. The prosecution case is as follows: Upon getting reliable information, the Excise Party conducted a search on 23.4.2008 in the evening in the residence of the appellant herein Crl.Appeal No.821 of 2015 3 and upon inspection, it was found that, the accused had stored 525 litres of wash, 70 litres of arrack in a secret store constructed in their house. The utensils for manufacturing the arrack were also seized from the place of search. Even though the residence was found open, none of the accused persons were present at the relevant time. On the basis of the same, Crime No.33/2008 was registered by Excise Range, Amaravila for the offences mentioned above and as part of the investigation, the appellant herein and her son, who were implicated as accused Nos.1 and 2 respectively, were arrested and later released on bail. After completion of the investigation, a final report was filed against them for the offences mentioned above. 3. In support of the prosecution, PWs.1 to 10 were examined, Exhibits P1 to P16 were marked. Material objects 1 and 11 were identified. After closure of the prosecution evidence incriminating materials brought out in the trial were put to the Crl.Appeal No.821 of 2015 4 accused while they were examined under Section 313 of Cr.PC. Both the accused persons denied their involvement and pleaded innocence. No defence evidence was adduced and after considering the materials adduced by the prosecution, the Sessions Court found the appellant/1[st] accused guilty for the offences whereas the 2[nd] accused was found not guilty. On the basis of the said conviction, sentence as aforesaid was imposed upon the 1[st] accused. This appeal is filed in the aforesaid circumstances. 4. Heard Sri.S.Mohammed Al Rafi, the learned counsel for the appellant and Sri.Aravind M. Mathew, the learned Public Prosecutor for the respondent. 5. The learned counsel for the appellant contends that the appellant is innocent of all allegations and she was falsely implicated. The main thrust of the argument is that the entire prosecution is vitiated as there was failure on the part of the investigating agency in complying Crl.Appeal No.821 of 2015 5 with the mandatory procedure contemplated under Section 53A of the Abkari Act. It was pointed out that, the wash which was seized by the Excise party was disposed of immediately after the seizure without following the procedure contemplated under the said provision. It was also pointed out that no scene mahazar was prepared by the investigating agency and hence the allegation that the contraband article were seized from a secret chamber constructed in the house of the appellant cannot be believed. The learned counsel for the appellant relies on the judgments on Balakrishna Rai v. State of Kerala [2020(3)KHC 286] and Smithesh v. State of Kerala [2019(2) KLT 974]. 6. Per contra, the learned Public Prosecutor opposes the contentions put forward by the learned counsel for the appellant. The learned Public Prosecutor points out that, the contention of non compliance of Section 53A of the Abkari Act is not sustainable. The contention regarding the lack of scene mahazar is also not sustainable as Ext.P7 Crl.Appeal No.821 of 2015 6 seizure mahazar contains the details of a secret chamber which is amply proved through the official witnesses. In such circumstances, the learned Public Prosecutor seeks for dismissal of the appeal. 7. The main contention put forward by the learned counsel for the appellant is regarding the non-compliance of the mandatory procedure contemplated under Section 53A of the Abkari Act. Section 53A mandates the procedure for disposal of contraband article seized by the detecting agency. Sub-section (2) thereof provides that upon seizure of any notified liquor, intoxicating drug or article, the authorized 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 packing containers in which they are kept, place of origin and other particulars, as Crl.Appeal No.821 of 2015 7 the authorized officer may consider relevant to identify the 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 are stored for the purpose of certifying the correctness of the inventory so prepared. 8. Going by the stipulation contained in Section 53A of the Abkari Act, it is mandatory for the detecting officer to prepare an inventory and get it certified by a Magistrate having jurisdiction over the area where the seizure was made. In Sub-section (5) of Section 53A contemplates that once such an inventory is prepared following the procedure contemplated therein, it shall be treated as a primary evidence in respect of such offence. In such circumstances, it is not necessary for the prosecution to produce the entire articles before the court during the trial and mark the same as material objects. The Crl.Appeal No.821 of 2015 8 production of the inventory as certified by the jurisdictional Magistrate would be a sufficient proof of the seizure of the contraband article. In Balakrishna Rai’s case (supra), it was observed by this Court as follows: _“20. The very purpose of the provisions contained in S.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 S.53A 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. Then the certificate issued by the Magistrate in respect of the inventory of liquor and the list of samples drawn in his presence shall be treated by the Court as primary evidence of the offence._ _21. However, when the procedure under S.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 be then entitled to take advantage of such doubt.”_ Crl.Appeal No.821 of 2015 9 In Balakrishna Rai’s case (supra) even though this Court found that an inventory was prepared by the detecting officer, but the same was not accepted by this Court on the ground that, the preparation of such inventory was made by an officer who was not an authorized officer under the provisions of the Abkari Act. Same view was taken by this court in Smithesh’s case (supra), as well. In that case also, the inventory was not produced before the court but instead only a report of the Magistrate with regard to the same was produced. In such circumstances also, the benefit of non production of the same was given to the accused. 9. From the aforesaid principles, as laid down by this Court, it is evident that, in the absence of any inventory prepared by following the procedure as contemplated under Section 53A of the Abkari Act, the entire contraband articles have to be produced before the court and marked as material object. The failure in doing so is fatal to the prosecution. In this case, admittedly no Crl.Appeal No.821 of 2015 10 inventory was prepared with respect to 525 litres of wash. What the detecting officer has done was that the entire wash was disposed of after collecting sample therefrom. In such circumstances, as the entire quantity of 525 litres of wash was not produced before the court and no inventory as certified by the Magistrate as contemplated under Section 53A of the Abkari Act has been produced in lieu thereof, it casts a clear doubt on the prosecution case with regard to the seizure of wash. 10. However, the crucial aspect to be noticed is that the specific allegation of the prosecution is that, apart from 525 litres of wash, 70 litres of arrack was also seized from the residence of the appellant. Exhibit P3 thondi list and Ext.P4 forwarding note would reveal that three cans containing arrack were submitted before the trial court immediately after the seizure. The aforesaid cans are marked in evidence as MO4 to MO6. It is true that, out of the said cans, MO4 was Crl.Appeal No.821 of 2015 11 containing arrack whereas MO5 and MO6 were found to be broken at the time of the trial. However, Exts.P3 and P4 would reveal that the aforesaid cans were properly sealed and produced before the court with arrack therein. In such circumstances as the contraband article ie. the arrack seized during the seizure was produced before the court and marked as material object, the non compliance of Section 53A of the Act does not comes into play as far as the arrack is concerned. In such circumstances, even though the prosecution failed in proving the detection of wash as alleged, owing to the non-compliance of Section 53A of the Act, no such finding can be arrived at with regard to the seizure of arrack. In such circumstances, the offences alleged against the appellant would still be attracted on account of the seizure of arrack, though the same would have an impact on the gravity of the offence, as seizure of lesser quantity was proved. In such circumstances, I find that the interference in the finding of the Crl.Appeal No.821 of 2015 12 Sessions Court in this issue can only be with respect to the quantity involved in the seizure and it would not provide any room for a finding of acquittal of the accused. 11. The next contention is relating to the lack of failure on the part of the prosecution in preparing scene mahazar. Exhibit P7 contains a clear description of the secret chamber constructed in the residence of the appellant. PW6 is the detecting officer who conducted search and seizure. He deposed in tune with the contents of Ext.P7 which is a contemporaneous document. His evidence is corroborated by PW10 who was the officer accompanied PW6 during the search and seizure. His evidence is also in tandem with the evidence of PW6 and Ext.P7. It is true that the independent witnesses examined by the prosecution to prove the seizure turned hostile. However, merely because of the reason that the independent witnesses were turned hostile, it is not necessary to discard the prosecution case as a whole. It is Crl.Appeal No.821 of 2015 13 a well settled position of law that if the evidence of official witnesses are found to be credible and trustworthy, the same can be acted upon. In this case, on scanning through the evidence of PW6 and PW10 carefully, I could not find any discrepancy in their evidence so as to discard the same in its entirety. The contents of Ext.P7 is clearly in tune with their evidence. In such circumstances, I do not find any merit in the argument put forward by the learned counsel for the appellant that, in the absence of preparation of scene mahazar, the entire prosecution has become doubtful. It is reiterated that, since the details of the secret chamber is specifically mentioned in Ext.P7 which has been proved through the evidence of PW6 and PW10, the aforesaid contention is only to be rejected. On examining the other materials, no discrepancy with regard to the sampling and chemical analysis of the said sample etc. are brought out. In such circumstances, I do not find any ground to Crl.Appeal No.821 of 2015 14 interfere in the finding of convicting entered into by the Sessions Court. 12. However, as I have already found that, the prosecution failed to prove the seizure of 525 litres of wash due to the reasons mentioned above. After analysing the entire materials, I am of the view that, the prosecution was successful in proving the seizure of arrack alone. Since there is substantial difference in the quantity, I am inclined to modify the sentence imposed upon the appellant by reducing the same to two years of simple imprisonment and a fine of Rs.1,00,000/- with a default sentence to undergo simple imprisonment for six months, for the offences punishable under Sections 8(1) & 2 and two years of simple imprisonment and a fine of Rs.1,00,000/- with a default sentence to undergo simple imprisonment for six months, for the offences punishable under Section 55(g) of Abkari Act. Crl.Appeal No.821 of 2015 15 Thus, the appeal is allowed in part with the above observations. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk