K. UDAYAKUMAR v. State of Kerala

## **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.1969 OF 2014** **AGAINST THE JUDGMENT IN CRA 137/2013 DATED 30-10-2014 OF COURT OF SESSIONS, KASARAGOD** **AGAINST THE JUDGMENT IN SC 346/2011 DATED 29-08-2013 OF SESSIONS COURT, KASARAGOD** ## **PETITIONER/APPELLANT/ACCUSED:** **K. UDAYAKUMAR AGED 37 YEARS S/O.(LATE)PRABHAKARAN, R/AT CHOORI, NEAR UMA NURSING HOME, MADHUR VILLAGE, KASARAGOD TALUK & DIST.** **BY ADV. SRI.S.JIJI** ## **RESPONDENT/COMPLAINANT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28.07.2020, THE COURT ON 03.08.2020 PASSED THE FOLLOWING:** Crl.R.P.No.1969/2014 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.1969 of 2014 -------------------------------------------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.346/2011 on the file of the Court of the Assistant Sessions Judge, Kasaragod. 2. The prosecution case is that, on 05.06.2010, at about 18.00 hours, at a bylane at the place Karanthakadu in Kasaragod, PW1 Excise Circle Inspector found the petitioner/accused in possession of a can containing ten litres of arrack. 3. The trial court framed charge against the accused for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. The petitioner/accused pleaded not guilty to the offence and he claimed to be tried. Crl.R.P.No.1969/2014 3 4. The prosecution examined PW1 to PW6 and marked Exts.P1 to P11 documents. No evidence was adduced by the accused. 5. The trial court found the petitioner guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple 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 imprisonment for a period of three months. 6. The petitioner filed Crl.A.No.137/2013 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. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition. 8. Heard. Perused the records. Crl.R.P.No.1969/2014 4 9. PW1 is the Excise Circle Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW2 is the excise guard who was in the excise party led by PW1. His evidence corroborates the testimony of PW1 with regard to the material particulars of the occurrence. 10. PW3 and PW4 are the independent witnesses examined by the prosecution. They did not support the prosecution case. They denied having seen the incident. 11. Ext.P11 is the chemical analysis report received in respect of the sample which was forwarded for analysis. It shows that the sample of liquid contained 27.20% by volume of ethyl alcohol. 12. 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. 13. PW1 has given evidence that he took sample of the liquid from the can and sealed the sample bottle and also the can containing the residue and affixed label, bearing his signature Crl.R.P.No.1969/2014 5 and the signature of the witnesses and the accused, on them. There is also a specific recital to that effect in Ext.P5 seizure mahazar. 14. PW1 has given evidence that he entrusted the accused and the records and the seized articles at the Kasaragod Excise Range Office. PW5, 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 sample before the court as per Ext.P7 property list. He has further deposed that he produced the remaining articles, that is, the can containing the residue before the Deputy Excise Commissioner. 15. The can containing liquid allegedly seized from the possession of the accused was not produced before the trial court and it was not marked in evidence as a material object. 16. Learned Public Prosecutor would point out that the Deputy Excise Commissioner had prepared Ext.P9 inventory of the can containing the liquid and produced it before the Magistrate and the learned Magistrate has certified the inventory Crl.R.P.No.1969/2014 6 as correct as required under Section 53A of the Abkari Act and therefore, there was no necessity to produce the can containing the liquid before the trial court. 17. 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. 18. 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.1969/2014 7 19. 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 (See **Balakrishna Rai v. State of Kerala : 2020(3) KHC 286 : 2020(3) KLT 727** ) 20. In the instant case, the evidence of PW5 would show that he produced the can containing the residue before the Deputy Excise Commissioner. The Deputy Excise Commissioner had signed Ext.P9 inventory and submitted it before the Magistrate. Ext.P9 bears a seal showing certificate of inventory issued by the learned Magistrate. 21. Ext.P9 inventory is signed by the Deputy Excise Commissioner, the authorised officer. However, on a bare perusal of Ext.P9 inventory, it can be found that it was prepared by PW5 Preventive Officer, who was in charge of the Excise Inspector and Crl.R.P.No.1969/2014 8 produced before the Deputy Excise Commissioner. Ext.P9 inventory bears an endorsement by the Excise Divisional Officer that it was received in that office on 07.06.2010. It also bears the signature of PW5. Therefore, there can be no doubt with regard to the fact that the inventory was prepared by PW5 and not by the Deputy Excise Commissioner. 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. 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.1969/2014 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 subsection (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_ Crl.R.P.No.1969/2014 10 _consequently, the revision petitioner is entitled to acquittal”._ 24. The situation in the present case with regard to Ext.P9 inventory is identical as mentioned above in **Chandran** (supra). 25. Ext.P9 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 can produced before him had the identifying particulars given in the inventory. The practice of issuing certificates of inventory by affixing seal has been deprecated by this Court in **Balakrishna Rai** (supra). 26. 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. 27. The trial court as well as the appellate court has not taken into consideration the defect in Ext.P9 inventory and also the certificate of inventory issued by the learned Magistrate. Since Ext.P9 inventory is defective, in the light of the decision in Crl.R.P.No.1969/2014 11 **Chandran** (supra), the conviction entered against the petitioner/accused cannot be sustained. The petitioner/accused is entitled to be acquitted. 28. Consequently, the revision petition is allowed. Conviction and sentence against the petitioner/accused under Section 8(1) read with 8(2) 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. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge