Jayan alias Kuzhchil Jayakumar v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 22[ND] DAY OF SEPTEMBER 2021 / 31ST BHADRA, 1943 CRL.A NO. 1493 OF 2006`** ``` AGAINST THE JUDGMENT IN SC 357/2005 OF ADDITIONAL SESSIONS COURT, FAST TRACK COURT II, PALAKKAD. ``` ## **`APPELLANT/ACCUSED:`** ``` JAYAN ALIAS KUZHCHIL JAYAKUMAR AGED 31 YEARS, S/O.SIVAN, KENICHIRA,, BATHERI, POOTHADI, WAYANAD. ``` ``` BY ADVS. SRI.P..M.RAFIQ SRI.P.M.RAFIQ ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR ``` ``` SRI. SANGEETH RAJ, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` `CRL.A NO. 1493 OF 2006` 2 ## **JUDGMENT** This appeal has been filed challenging the conviction and sentence imposed on the appellant/accused in S.C.No.357/2005 on the file of the Additional Sessions Judge, Fast Track Court No.II, Palakkad in a prosecution under Section 55(a) of the Abkari Act. 2. The appellant/accused was apprehended at Walayar Excise Check Post at about 6.30 a.m on 29.6.2004 while transporting about 13,504 litres of spirit in 383 plastic containers each having the capacity of about 35 litres in a lorry bearing Registration No.KL-04 J 3972. It was alleged that the above act of the appellant/accused constituted an offence under Section 55(a) of the Abkari Act. 3. Following the investigation of the case, a final report was filed before the Judicial First Class Magistrate Court-I, Palakkad, from where it was committed to the Court of Sessions for trial and disposal. The same was originally made over to the Assistant Sessions Court, Palakkad for trial. The case was subsequently `CRL.A NO. 1493 OF 2006` 3 withdrawn and transferred to the Additional Sessions Judge, Fast Track Court No.II, Palakkad. A charge was framed by that Court alleging the commission of an offence under Section 55(a) of the Abkari Act. On the appellant/accused pleading not guilty, the prosecution examined PWs 1 to 6 and marked Exts.P1 to P7 documents as well as MO1 which was one of the plastic containers out of the total number of 383, containing the arrack. Following the closure of prosecution evidence, the appellant/accused was questioned under Section 313 Cr.P.C where he denied all incriminating evidence appearing against him. On the defence side, DW1 was examined. On an appreciation of the evidence, the trial Court came to the conclusion that the appellant/accused was guilty of the offence alleged to have been committed and therefore, convicted him for an offence under Section 55(a) of the Abkari Act and sentenced him to undergo rigorous imprisonment for nine years and to pay fine of Rs.10 lakhs and in default of payment of fine, to undergo simple imprisonment for two years. Set off as permissible in law was granted. `CRL.A NO. 1493 OF 2006` 4 4. In support of the appeal, the learned counsel appearing for the appellant would contend that this appeal is liable to be allowed on a short point which is that the procedure contemplated by Section 53A of the Abkari Act has not been followed in this case. He submits that the case of the prosecution is that a very huge quantity of spirit (13504 litres) were being carried in about 383 plastic containers each having the capacity of about 35 litres in a lorry bearing registration No.KL-04-J-3972. It is also clear that only one of the 383 plastic containers was produced before the court. The sample was also drawn only from one of the plastic containers. This is clear from the evidence tendered by PW1. Learned counsel appearing for the appellant/accused submits that this Court had recently considered, in detail, the procedure contemplated by Section 53A of the Abkari Act in **Balakrishna Rai V. State of Kerala** [2020 (3) KLT 727] and held as follows .. > ''14. 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 have been specified as the liquors which may be disposed of by the authorised officer as provided in Section 53A of the Act. > 15. Section 53A(2) of the Act provides that, where any such notified liquor, intoxicating drug or article has been seized under `CRL.A NO. 1493 OF 2006` 5 the 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 liquor, intoxicating drug or article in any proceedings under the 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, -- (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. 16. 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, the photographs of liquor, intoxicating drug or article and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence. 17. Section 53A of the Act comes into play when the liquor seized under the Act has to be disposed of by the authorised officer immediately after its seizure. In such cases, the authorised officer shall prepare an inventory of such liquor. The inventory so prepared shall contain necessary details which are relevant to identify the liquor in any proceedings under the Act. The authorised officer shall then make an application to the Magistrate concerned for any of the following three purposes, namely, (a) certifying the correctness of the inventory so prepared; or (b) taking photographs of the liquor in the presence of the Magistrate and to certify such photographs as true; or (c) to allow drawing of representative samples of the liquor in the presence of the Magistrate and to certify the correctness of any list of samples so drawn. The certificate so issued by the learned Magistrate shall be treated as primary evidence during the trial in respect of the offence. 18. Dealing with the contention regarding non-production of bulk quantity of contraband article before the court during the trial of the case, in **State Rajasthan v. Sahi Ram** : AIR 2019 SC 4723, the Supreme Court has held as follows: “If the seizure of the material 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 not in doubt, there is no `CRL.A NO. 1493 OF 2006` 6 requirement that the entire material ought to be produced before the Court. At times the material could be so bulky, for instance as in the present material when those 7 bags weighed 223 Kgs that it may not be possible and feasible to produce the entire bulk before the Court. If the seizure is otherwise proved, what is required to be proved is the fact that the samples taken from and out of the contraband material were kept intact, that when the samples were submitted for forensic examination the seals were intact, that the report of the forensic experts shows the potency, nature and quality of the contraband material and that based on such material, the essential ingredients constituting an offence are made out”. 19. Again, in Than Kunwar v. State of Haryana: MANU/SC/0242/2020, after surveying the case law on the issue, the Apex Court has re-iterated the principle that, if the seizure is otherwise not in doubt, there is no requirement that the entire material ought to be produced before the Court during the trial of the case and marked as material object. 20. 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 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 liqour 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 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 be then entitled to take advantage of such doubt. xxx xxx xxx 25. This Court dealt with almost similar facts in **Chandran @ Chandrasekharan v. State of Kerala** : 2016 (5) KHC 650: 2016 (4) KLT 727 and it was held as follows: “In this case, PW1 was admittedly not an authorised officer under Section 67B of the `CRL.A NO. 1493 OF 2006` 7 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”. (emphas is supplied) 26. 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. **==> picture [145 x 6] intentionally omitted <==** 30. The practice of certifying the inventory by affixing any seal and by filling up the blank spaces in the seal has to be deprecated. The Magistrates who certify the inventory under the Abkari Act or the Narcotic Drugs and Psychotropic Substances Act have to bear in mind that the certificate being issued by them would be treated as primary evidence in respect of the offence during the trial of the case. Inventory shall be certified by the Magistrates only after carefully verifying the correctness of the particulars of the property mentioned and described in it. 31. True, in **Santhosh v. State of Kerala** : 2017 (5) KHC 107, a learned Judge of this Court has taken the view that a Judicial Magistrate cannot entertain an application under Section 53A of the Abkari Act since the act contemplated by that provision is not a judicial one, but executive. Examination of that question is not really necessary for disposing this revision petition. Suffice it to state here that, the decision of the Apex Court in **Union of India v. Mohanlal** : 2016 (3) SCC 379, which deals with the scope of the similar provision of Section 52A in the Narcotic Drugs and Psychotropic Substances Act, indicates that certification of inventory, list of samples drawn etc is a function to be exercised by a Judicial Magistrate. Such an indication is there in the direction `CRL.A NO. 1493 OF 2006` 8 ## given by the Apex Court which reads as follows: “We are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs .....”. 5. In the facts of the present case, Ext.P5 is the property list produced and marked through PW5, which would show that the following items were produced before the learned Magistrate:- - (1) The entire bulk quantity of arrack seized from the appellant/accused and contained in 383 white plastic containers having approximately 13370 litres of spirit; - (2) One plastic container having approximately 35 litres capacity containing about 34.5 litres of spirit sealed and labelled. The quantity contained in this plastic container was stated to be balance remaining after taking all samples; - (3) The bottle having approximately 750 ml of capacity in which 500 ml of spirit had been drawn, sealed and labelled; - (4) plastic table - 5 Nos; - (5) Tarpaulin - 1 No; and - (6) certain length of plastic rope. The endorsement made by the learned magistrate on the property list shows that, except for the samples drawn in the bottle having about 750 ml capacity, all other items were directed to be kept in safe custody by the Excise Inspector, Palakkad, until further `CRL.A NO. 1493 OF 2006` 9 orders. 6. PWs 1, 2, 5 and 6 are the official witnesses in this case. A perusal of the depositions of PWs 1, 2, 5 and 6 do not indicate as to what was done with the balance quantity of spirit allegedly seized from the appellant/accused. It has also come out in evidence that though the plastic container from which the sample was drawn was properly sealed and labelled and though the sample bottle was also properly sealed and labelled, no seals or labels were affixed on the other plastic containers. 7. The incident is stated to have occurred on 29.06.2004 which is after the date on which the provisions of Section 53A of the Abkari Act came into force. Section 53A was inserted by Act 1 of 2003 with effect from 03.09.2002. It is clear that the provisions of Section 53A were not followed and no inventory was prepared and that no sampling was done in the manner contemplated by the provisions of Section 53A of the Abkari Act which is mandatory when the contraband seized is of a large quantity. This is a serious flaw in the prosecution case and as held by this Court in **Balakrishna Rai** (supra), the appellant/accused is entitled to the benefit of doubt. `CRL.A NO. 1493 OF 2006` 10 8. In the result, the appeal is allowed. The conviction and sentence imposed on the appellant/accused in S.C. No.357 of 2005 on the file of the Additional Sessions Court, Fast Track Court-II, Palakkad, is set aside and the appellant/accused is acquitted. 9. This is a case where a huge quantity of spirit (about 13405 litres) was seized from a lorry bring driven by the appellant/accused. Investigation showed that the registration number of the lorry was also false and that the registration number was one originally assigned to a motorcycle. It is, to say the very least, surprising that no investigation was carried out to determine either the source or the destination of such a huge quantity of contraband and the driver of the lorry alone was arrayed as an accused. It is distressing that when such a huge quantity of spirit was seized, the officers failed to comply with the provisions contained in Section 53A of the Abkari Act, resulting in this Court having acquit the appellant/accused for that reason alone. The records, in this case, show that the entire contraband material seized was produced before the competent judicial magistrate forthwith. However, the endorsement on Ext.P5 property list shows that the learned Magistrate also did not insist `CRL.A NO. 1493 OF 2006` 11 on compliance with the provisions contained in Section 53A of the Abkari Act. It is only appropriate that such errors should be prevented at all costs. Several cases have come up before this Court where the persons accused of the offences under the Abkari Act have to be acquitted on account of defects such as failure to affix/describe nature of the seals in the seizure mahazar, failure to affix seals on the forwarding note etc. I direct the Registry to forward a copy of this Judgment to the Excise Commissioner, Government of Kerala who will consider the issuance of a detailed circular regarding the correct procedures to be adopted also having regard to the various decisions rendered by this Court regarding arrest, sampling, time-bound completion of the investigation, information to be given regarding the right reserved to be searched in the presence of a gazetted officer or Magistrate (in NDPS Cases) etc. and such other technical matters, to ensure that the persons found guilty do not escape the clutches of the law owing to technical lapses on the part of the investigation agency. **GOPINATH P. JUDGE** ajt