K. Sasidharan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 02ND DAY OF JULY 2020 / 11TH ASHADHA, 1942** **Crl.Rev.Pet.No.1720 OF 2014** **AGAINST THE JUDGMENT IN SC 348/2011 DATED 08-11-2013 OF ASSISTANT SESSIONS JUDGE, KASARAGOD IN CRA 172/2013 DATED 22-08-2014 OF ADDITIONAL DISTRICT & SESSIONS JUDGE - I, KASARAGOD** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **K.SASIDHARAN AGED 37 YEARS S/O. KESHAVA, R/AT KUNNARA DESOM, KUNNARA HARIJAN COLONY, THEKKIL VILLAGE, KASARAGOD DISTRICT.** **BY ADV. SRI.KODOTH SREEDHARAN** ## **RESPONDENT/COMPLAINANT** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **SMT MAYA M N -PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19.06.2020, THE COURT ON 02.07.2020 PASSED THE FOLLOWING:** Crl.R.P.No.1720/2014 2 **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.1720 of 2014 ---------------------------------------Dated this the 2[nd] day of July, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.348/2011 on the file of the Court of the Assistant Sessions Judge, Kasaragod. 2. The prosecution case is that, on 28.04.2006, at about 18.00 hours, at Kunnara – Mayippadi road in Thekkil Village, PW1 Preventive Officer found the petitioner/accused having in his possession a plastic sack containing 150 packets, each packet containing 100 ml. of arrack. 3. The trial court framed charge against the petitioner for the offence punishable under Section 8(1) read with 8(2) of the Crl.R.P.No.1720/2014 3 Abkari Act, 1077 (hereinafter referred to as 'the Act'). The petitioner pleaded not guilty and claimed to be tried. 4. The prosecution examined PW1 to PW4 and marked Exts.P1 to P11 documents. No evidence was adduced by the petitioner/accused. 5. The trial court found the petitioner guilty of the offence punishable under Section 8(1) read with 8(2) of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of three years and also to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo imprisonment for a period of three months. 6. The petitioner filed Crl.A.No.172/2013 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 Crl.R.P.No.1720/2014 4 accused in this revision petition. 8. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records. 9. PW1 Preventive Officer, who detected the offence, has given evidence regarding the occurrence in detail. The independent witness, who was examined as PW2, did not support the prosecution case. PW3 is another Preventive Officer who was in the excise party led by PW1. His evidence more or less corroborates the testimony of PW1 regarding the occurrence. PW4 is the Assistant Excise Inspector who has filed final report in the case. 10. Ext.P11 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 33.87% by volume of ethyl alcohol. 11. Learned counsel for the petitioner contended that the conviction entered against the petitioner cannot be sustained for the following reasons:(1) The bulk quantity of the contraband Crl.R.P.No.1720/2014 5 liquor allegedly seized from the possession of the petitioner was not produced before the court and marked as material object during the trial. (2) The inventory certified by the learned Magistrate was not prepared by the authorised officer and therefore, it cannot be accepted as evidence in respect of the offence allegedly committed. (3) The inventory certified by the learned Magistrate is not proper and it cannot be treated as primary evidence in respect of the offence as envisaged under Section 53A(5) of the Act. 12. Learned Public Prosecutor has submitted that inventory of the liquor was prepared by the authorised officer and it was certified by the Magistrate concerned and therefore, it was not necessary to produce the bulk quantity of liquor before the trial court. 13. 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 Crl.R.P.No.1720/2014 6 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 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 of 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)** ]. 14. 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 Crl.R.P.No.1720/2014 7 trying an offence under the Act, shall treat the inventory certified by the Magistrate as primary evidence in respect of such offence. 15. 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 are the three kinds of liquor specified to be disposed of by the authorised officer as provided in Section 53A of the Act. 16. 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 Crl.R.P.No.1720/2014 8 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. 17. 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. Crl.R.P.No.1720/2014 9 18. 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. 19. In the instant case, the evidence of PW1 and the recitals in Ext.P5 seizure mahazar would show that PW1 had opened and poured the liquid in three packets into a bottle and took it as sample and sealed the sample bottle. PW1 also put the remaining 147 packets and the three empty packets in the sack and sealed the sack. The evidence of PW1 shows that he had produced the articles and the records before the Excise Inspector concerned. The Assistant Excise Inspector who was in charge of the Excise Inspector (who was no more at the time of the trial of the case) produced the sample bottle in the court as per Ext.P7 property list and it was sent for analysis as per Ext. P8 Crl.R.P.No.1720/2014 10 forwarding note. He had produced the sack containing the 147 packets of liquid before the Assistant Excise Commissioner along with Ext.P10 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. 20. 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. A bare perusal of Ext.P10 inventory shows that it was prepared by the Assistant Excise Inspector who was in charge of the Excise Inspector. It is specifically stated in the inventory that it is prepared by him. The Assistant Excise Commissioner, the authorised officer, has only countersigned it. ## 21. 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 Crl.R.P.No.1720/2014 11 cannot be acted upon and then the entire contraband should be produced before the Court. 22. 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. 23. Ext.P10 inventory suffers from yet another infirmity. The description of the sack containing the packets of arrack given in the inventory shows that the sack was in a sealed condition. The property produced before the Magistrate for certification was a sealed sack which allegedly contained 147 packets of liquid. The certification of inventory by the Magistrate should have been Crl.R.P.No.1720/2014 12 done in respect of the packets containing the arrack, the notified liquor. 24. The learned Magistrate has certified the inventory by affixing a seal as follows: ## CERTIFICATE _Certified that the inventory in Cr.No........... of ..............Range/PS is in conformity with/not in conformity with the material objects verified._ After affixing the aforesaid seal, learned Magistrate has filled up the blanks in the above seal with the crime number of the case and the name of the excise range office and struck off the words "not in conformity" with pen and signed below it. 25. The certificate above, affixed in the form of a seal, by the learned Magistrate on Ext.P10 inventory, would indicate that he had not actually verified the particulars of the packets of liquor contained in the sealed sack which was produced before him. The certificate does not reveal whether the sack produced before the learned Magistrate contained 147 packets of liquid. Crl.R.P.No.1720/2014 13 There is nothing to show that the learned Magistrate had got the sealed sack opened and that he verified its contents. 26. Recently, in **Balakrishna Rai v. State of Kerala : 2020 (3) KHC 286: 2020 (1) KLD 716** , this Court had occasion to observe as follows: _"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"._ 27. In view of the infirmities pointed out above in the preparation of the inventory by the authorised officer and the certification of the inventory by the learned Magistrate under Section 53A of the Act, I find that the certificate of inventory Crl.R.P.No.1720/2014 14 issued by the learned Magistrate in this case cannot be treated as primary evidence in respect of the offence allegedly committed by the petitioner. In such a situation, non-production of the bulk quantity 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. 28. The trial court and the appellate court have not taken into consideration the above mentioned vital aspects 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. 29. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 8(1) read with 8(2) of the Abkari Crl.R.P.No.1720/2014 15 Act, which stands affirmed by the appellate court, is set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. Bail bond, if any, 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