K. Narayanan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM WEDNESDAY, THE 11[TH] DAY OF OCTOBER 2023 / 19TH ASWINA, 1945 CRL.REV.PET NO. 1055 OF 2016 ``` ``` AGAINST THE ORDER/JUDGMENT CRA 208/2015 OF PRINCIPAL SESSION’S COURT, KASARAGOD SC 506/2010 OF ASST. SESSION’S COURT, HOSDURG ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` K.NARAYANAN AGED 41 YEARS AGED 41 YEARS, S/O. APPU, RESIDING AT MUKKOD, KARRAKKUNNU COLONY, CHITHARI VILLAGE, RAVANESHWARAM P.O., HOSDURG TALUK, KASARAGOD DISTRICT. BY ADVS. SRI.T.MADHU SMT.C.R.SARADAMANI ``` ## **`RESPONDENT/RESPONDENT & STATE:`** ``` STATE OF KERALA THROUGH THE EXCISE INSPESCTOR, HOSDURG EXCISE RANGE,KASARAGOD DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682 031. BY P.P., SRI. M.C.ASHI ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P. No. 1055 of 2016 :2: ## **VIJU ABRAHAM , J. =========================== Crl.R.P. No. 1055 of 2016 ============================ Dated this the 11[th] day of October, 2023** ## **O R D E R** The revision petitioner herein is the accused in S.C. No. 506 of 2010 on the file of the Assistant Sessions Court, Hosdurg alleging commission of offences punishable under Sections 8(1) and 8(2) of the Kerala Abkari Act. 2. The prosecution allegation is that, on 23.02.2008 at about 12.30 pm, while CW1, the Preventive Officer, Excise Range Office, Hosdurg and party were on patrol duty got reliable information from the Excise Intelligence Bureau that illicit arrack was being sold at Nelliadukkam Colony. Accordingly, CW1 and party proceeded to the spot and found the accused entering into the road from the eastern side of the community hall holding a 10-litre capacity cannas. He was intercepted and inspected and was found in possession of 10 litres of arrack and thereby the accused has committed the alleged offences. 3. The prosecution in support of their case examined PWs 1 to 4 and Exts P1 to P13 were marked. The trial Court found the accused guilty and convicted him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- and in Crl.R.P. No. 1055 of 2016 :3: default of payment of fine, to undergo rigorous imprisonment for a further period of six months. The trial Court also allowed set-off. 4. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.208 of 2015 wherein the same was partly allowed. While the Appellate Court confirmed the conviction of the accused for the offence under Section 8(1) and 8(2) of the Kerala Abkari Act, modified the sentence by reducing the substantive sentence to rigorous imprisonment for two years. 5. The learned Counsel for the revision petitioner contended that there is no strict compliance of Section 53A of the Act in as much as the inventory has not been prepared by the authorized officer, i.e., an officer not below the rank of Assistant Excise Inspector and that the same was prepared by PW1 who was the Excise Inspector at the relevant point of time, which is fatal to the case of the prosecution. 6. Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not preclude this court from examining whether there is strict compliance with the statutory formalities mandated as per the Abkari Act. This court in **Baburaj v. State of Kerala, 2021 (6) KLT 416** , has held that given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the Crl.R.P. No. 1055 of 2016 :4: statutory formalities specified in the Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section 114 (e) of the Evidence Act has no application if official acts are not shown to be performed properly, as held in **Sathi v. State of Kerala, 2007 (1) KLT SN 57.** In this backdrop, it is to be considered as to whether the prosecution has proved the guilt of the accused without any reasonable doubt. 7. Let me consider the contention raised by the learned counsel for the revision petitioner regarding noncompliance of Section 53A of the Abkari Act. Section 53A reads as follows: “ _53A. 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, their 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 their 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_ Crl.R.P. No. 1055 of 2016 :5: _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 this Act and make an application to any Magistrate 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, 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 under sub sections (2) and (4) and certified by the Magistrate, as primary evidence in respect of such offence._ _Explanation. - 'Article' for the purpose of this section includes_ Crl.R.P. No. 1055 of 2016 :6: _jaggery and other like substances, the value of which depreciates in passage of time.”_ Going by Section 53A the inventory is to be prepared by the authorised officer referred to in Section 67B. Section 67B reads as follows: _“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 or any animal, cart, vessel, or other conveyance used in carrying the same is seized 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) Where an authorised officer seizes and detains any property specified in sub-section (1) or where any such property is produced before an authorised officer under that sub-section and he is satisfied that an offence under this Act has been committed in respect of or by means of that property and that such property is liable to confiscation under this Act, such authorised officer may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of such property and where such property consists of any receptacle or package, the authorised officer may also order confiscation of all contents thereof._ _(3) When making an order of confiscation under sub-section (2), the authorised officer may also order that such of the properties_ Crl.R.P. No. 1055 of 2016 :7: _to which the order of confiscation relates, which in his opinion cannot be preserved or are not fit for human consumption, be destroyed.”_ Section 67B mandates that the officers seizing and detaining the property shall without any unreasonable delay produce the same before the officer authorised by the Government in this behalf i.e., an officer not below the rank of Assistant Excise Commissioner. The learned Counsel for the revision petitioner would submit that Ext P8 inventory contains the seal and signature of the Excise Inspector, Hosdurg range and it is seen that the signature was affixed on 23.02.2008 i.e., the date of occurrence. It is seen that the Assistant Excise Commissioner, Kasaragod has also signed the inventory prepared under Section 53A of the Abkari Act. The specific case of the revision petitioner is that the said inventory was not prepared by the Assistant Excise Commissioner as provided under the Act but by the Excise Inspector, Hosdurg range. To substantiate the same, the learned counsel took me to the evidence of PW1 who would depose that he has forwarded the inventory certificate and the photographs of the contraband and the negatives to the Assistant Excise Commissioner which were marked as Exts P8, P9 and P10. The evidence of PW1 categorily shows that the inventory list was prepared by him and was forwarded to the Assistant Excise Commissioner which is a clear case of violation of Section 53A wherein the inventory has to be prepared by an officer not below Crl.R.P. No. 1055 of 2016 :8: the rank of Assistant Excise Commissioner. The revision petitioner relies on the judgment in _**Balakrishna Rai v. State of Kerala [2020 (3) KLT 727]**_ , Paragraphs 24, 25 and 26 of the said order reads as follows: _“24. There is merit in the contention of the learned counsel for the petitioner that the inventory was not prepared by the authorised officer but it was only signed by him. True, Ext P9 inventory is signed by the Assistant Excise Commissioner, the authorised ofcer. But, it also bears the signature of the Preventive Ofcer with the date 22.08.2008, that is, the date of the occurrence. It indicates that the inventory was not prepared by the Assistant Excise Commissioner, who is the authorised ofcer, but it was prepared by PW1 Preventive Ofcer himself._ _25. This Court dealt with almost similar facts in Chandran @ Chandrasekharan v. State of Kerala [2016 (4) KLT 727: 2016 (5) KHC 650] and it was held as follows:_ _“In this case, PW1 was admittedly not an authorised officer under Section 67 B 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”_ ## (emphasis applied) _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_ Crl.R.P. No. 1055 of 2016 :9: _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.”_ The learned Counsel for the revision petitioner would submit that the decision in Balakrishna Rai’s case was followed by the Division Bench of this Court in _**K. Umesh v. State of Kerala [2023 (1) KLT Page 7, para 80].**_ Paragraph 80 of the said judgment reads as follows: _“ In the facts of this case, Ext P8 is the inventory, claimed to have been prepared in accordance with Sec. 53A(2). It is seen signed by PW1 [Preventive Officer in charge of Excise Inspector] as well as by the Assistant Excise Commissioner. Both signatories have not shown any date, on which, they stated to have signed it. Also, the Assistant Excise Commissioner, who is stated to have signed Ext P8 inventory, has not given any evidence. PW1, other than marking Ext P8, has not given any positive evidence regarding the preparation of the inventory and that it was actually prepared by the authorised officer, namely the Assistant Excise Commissioner or even that Ext P8 inventory was verified by the Magistrate, as mandated in the Section.”_ Taking into consideration the evidence by PW1 that he has prepared Ext P8 inventory and forwarded the same to the Assistant Excise Commissioner, this court is of the view that there is no proper compliance of Section 53A, the benefit of which should go to the revision petitioner. 8. The above-mentioned vital aspect was not considered by the courts below while appreciating the evidence and consequently Crl.R.P. No. 1055 of 2016 :10: convicting and sentencing the revision petitioner/accused. Therefore, the conviction and sentence imposed by the courts below cannot be sustained. In the result, the revision petition is allowed, setting aside the conviction and sentence passed by the courts below and the revision petitioner/accused is acquitted of the charges levelled against him. The bail bond shall stand cancelled and he is set at liberty. Needless to say, if the revision petitioner/accused has deposited any amount before the trial court pursuant to an order passed by this court or the appellate court, the same shall be refunded to the revision petitioner in accordance with the law. **Sd/VIJU ABRAHAM JUDGE** sbk/-