Kelappan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` MONDAY, THE 11[TH] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945 ``` ``` CRL.REV.PET NO. 1687 OF 2016 ``` ``` AGAINST THE ORDER/JUDGMENT IN CRA 420/2015 OF ADDITIONAL DISTRICT ``` ``` COURT & SESSIONS COURT - V, KOZHIKODE ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 325/2012 OF ASSISTANT ``` ## **`SESSIONS COURT, VADAKARA`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` KELAPPAN ``` ``` AGED 47 YEARS AGED 47, S/O.KANARAN, VAYALINKARA HOUSE, VELLIYODE AMSOM, VALANTHODU DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. ``` ``` BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031. ``` ## **`OTHER PRESENT:`** ``` SHRI SANAL P. RAJ-P.P. ``` ## **`THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION`** ``` ON 11.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 1687 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** ## **ORDER** This revision is at the instance of the accused in S.C. No.325 of 2012 on the file of Assistant Sessions Judge, Vadakara, assailing the judgment in Crl.Appeal No.420 of 2015 on the file of Additional Sessions Judge-V, Kozhikode, which upheld his conviction under Section 55(g) of the Abkari Act, though the sentence was modified and reduced to certain extent. 2. The prosecution case is that, on 01.08.2011, PW2, the Preventive Officer and excise party on getting intelligence report, that arrack is being distilled, by the side of Vilangad river near to the house of Sri.Kellappan (revision petitioner) proceeded to that place and at 4.30 p.m, they found the revision petitioner carrying a 35 litre plastic can and on seeing the excise party, he left the can and jumped into the river and escaped. On inspection, another can of 35 litre capacity was also found nearby. Both cans contained wash meant for brewing illicit arrack. ``` CRL.REV.PET NO. 1687 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** On enquiry, it was revealed that, it was the revision petitioner, who left the can and escaped. 3. After taking sample in a 375 ml bottle from one of the cans, remaining wash was destroyed at the spot. The sample bottle, cans, and the documents prepared were all produced before the Excise Range Office, and PW2 himself registered the crime. PW5, Excise Inspector took over the investigation on 03.08.2011. On completing the investigation, charge sheet was laid against the revision petitioner under Section 55(g) of the Abkari Act. 4. On appearance of the revision petitioner before the trial court, charge was framed under Section 55(g) of the Abkari Act, read over and explained, to which, he pleaded not guilty and claimed to be tried. PWs.1 to 5 were examined and Exts.P1 to P9 were marked from the side of prosecution, to prove its case. 5. On closure of prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on ``` CRL.REV.PET NO. 1687 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** record, but no defence evidence was adduced. 6. On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Section 55(g) of the Abkari Act, and he was sentenced to undergo rigorous imprisonment for three years and fine of Rs.1 lakh, with a default sentence of rigorous imprisonment for a further period of one year. 7. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal No.420 of 2015. The appellate court, on re-appreciating the facts and evidence, upheld the conviction under Section 55(g) of the Abkari Act, though the substantive sentence was modified and reduced to simple imprisonment for a period of one year, but without altering the fine amount and its default sentence, against which, he has preferred this revision. 8. Now this Court is called upon to verify the legality, propriety and correctness of the impugned ``` CRL.REV.PET NO. 1687 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** judgment of conviction and sentence imposed on the revision petitioner by the courts below. 9. Heard learned counsel for the revision petitioner and learned Public Prosecutor. 10. Learned counsel for the revision petitioner is assailing the conviction and sentence mainly on two grounds. The first ground is that, the identity of the revision petitioner was not proved beyond reasonable doubt, and the 2[nd] ground is, there was blatant violation of Section 53A of the Abkari Act. 11. PW2 is the detecting officer. He deposed that, on getting reliable information that illicit arrack is being brewed on the banks of Vilangad river near to the house of one Mr.Kelappan, the excise party proceeded to that place, and about 150 meters away from the house of Sri.Kelappan, they saw one person holding a blue can, and when they approached him, he jumped into the river leaving the can, and swam towards the other side of the river. In Ext.P2 seizure mahazar, it is stated that, the ``` CRL.REV.PET NO. 1687 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** whereabouts of the person who escaped from the scene was spoken to by the witnesses present there. But, when examined before court, PW2 would say that, he had previous acquaintance with Mr.Kelappan, as he was an accused in another abkari case. He further added that Mr. Kelappan used to reach the excise office every week for putting his signature. During cross examination, PW2 admitted that, he himself had detected the abkari case against the revision petitioner earlier also, and thus, he became familiar to him. PW2, the Preventive Officer could not arrest the revision petitioner. PW5, the investigating officer also did not say anything about the arrest of the revision petitioner. Since the person, who jumped into the river leaving the can and escaped from the scene, was not arrested, at any point of time before filing the final report he was not shown to the witnesses for the purpose of identification. No arrest memo of the revision petitioner is seen produced by the prosecution. The testimony of PW2 is to the effect that, even prior to ``` CRL.REV.PET NO. 1687 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** this incident, he had registered abkari case against the revision petitioner, and so, he was familiar to him. So, it was all the more necessary for the prosecution to get the revision petitioner properly identified by the independent witnesses before he was charge sheeted. So, the contention of the revision petitioner that since he was acquitted in the previous abkari case registered against him by PW2, he was falsely implicated in a subsequent case, without proper identification, assumes significance, and the doubt arising as to his identity, has to go in his favour. 12. The next contention is that, PW2 destroyed the wash after taking sample in a 375 ml bottle without any authority, and in violation of Section 53A of the Abkari Act. PW2, the detecting officer admitted before court that, after taking sample, the entire wash was destroyed by him, at the spot. 13. Section 53A of the Abkari Act is extracted hereunder for easy reference; ``` CRL.REV.PET NO. 1687 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** ## “ **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, its 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 its 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 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 ``` CRL.REV.PET NO. 1687 OF 2016 ``` **==> picture [37 x 9] intentionally omitted <==** 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, visit the place where such liquor, intoxicating drug or articles are stored and take appropriate steps as specified in clauses (a)(b) and (c) of sub-section (2), and 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 ``` CRL.REV.PET NO. 1687 OF 2016 ``` **==> picture [45 x 9] intentionally omitted <==** offence. Explanation. - 'Article' for the purpose of this section includes jaggery and other like substances, the value of which depreciates in passage of time.” 14. When large quantity of liquor, intoxicating drugs or other articles could not be produced before the court, it can be disposed by an authorized officer, after preparing an inventory which shall contain necessary details relevant to identify the liquor in any proceedings under the Act. The authorized officer shall then make an application to the Magistrate concerned for the purpose of (i) certifying the correctness of the inventory so prepared or (ii) taking photographs of the liquor in the presence of Magistrate and to certify such photographs as true and (iii) 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 Magistrate shall be treated as primary evidence during the trial, in respect of the offence. After obtaining evidence regarding the seizure ``` CRL.REV.PET NO. 1687 OF 2016 ``` **==> picture [45 x 9] intentionally omitted <==** certified by the Magistrate, the authorized officer can dispose the large quantity of the contraband liquor seized. If the authorized officer and the Magistrate follow the mandate under Section 53A of the Abkari 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. 15. In **Balakrishna Rai. v. State of Kerala** [2020 (3) KHC 286] this Court held that, the very purpose of the provisions contained in Section 53A of the Abkari Act is disposal of large quantity of seized contraband liquor immediately after the seizure on retaining evidence regarding its seizure. ## 16. Paragraphs 20 and 21 of **Balakrishna Rai’s** case [2020 (3) KHC 286] read thus; “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 ``` CRL.REV.PET NO. 1687 OF 2016 ``` **==> picture [45 x 9] intentionally omitted <==** 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.” 17. In the case on hand, Ext.P8 inventory is being prepared for two empty plastic cans. The contents of the cans were admittedly destroyed by PW2 at the scene of occurrence itself before preparing the inventory and before getting the certification from the Magistrate. So, there is violation of Section 53A of the Abkari Act. Even ``` CRL.REV.PET NO. 1687 OF 2016 ``` **==> picture [45 x 9] intentionally omitted <==** the empty cans were not produced before court as a material object. So, there is no reliable evidence to show that 70 litres of wash was seized by PW2 from the scene of detection. Moreover since the identity of the revision petitioner is doubtful, there is nothing to connect the revision petitioner with the contraband alleged to have been seized by PW2. 18. In **Sathyan v. State of Kerala** [2023 (3) KHC 97], this Court held that, the illegality committed in preparation and certification of the inventory cannot be corrected, when the contraband has been destroyed. In the absence of evidence regarding the seized contraband, either in physical form or in the form of an inventory containing essential details like description, quality, quantity etc.. of the seized liquor, further proceedings in the case will become an empty formality and abuse of process of court. 19. In the case on hand, the prosecution failed to prove the identity of the revision petitioner beyond ``` CRL.REV.PET NO. 1687 OF 2016 ``` **==> picture [45 x 9] intentionally omitted <==** reasonable doubt, so as to connect him with the contraband allegedly recovered from the banks of Vilangad river on 01.08.2011. Since PW2 destroyed the wash even without preparing an inventory and getting proper certification from the Magistrate, it is in violation of Section 53A of the Abkari Act, and prosecution failed to prove that 70 litres of wash was seized on 01.08.2011 from the possession of the revision petitioner. So also prosecution failed to prove beyond doubt that the revision petitioner was keeping 70 litres of wash for the purpose of brewing illicit arrack. The independent witness i.e., PW4 turned hostile and he did not support the prosecution case that, PWs. 2 and 3 seized 70 litres of wash from near the house of the revision petitioner. None of the witnesses, who allegedly identified the person who jumped into the river as the revision petitioner, was not made a witness to prove the identity of the revision petitioner. Moreover, PW2 himself admitted that, earlier he had registered an abkari case against the revision ``` CRL.REV.PET NO. 1687 OF 2016 ``` **==> picture [45 x 9] intentionally omitted <==** petitioner, and every week he was coming to the Excise Office, for affixing his signature. If so the revision petitioner was so familiar to him, and he could have identified him on first sight itself without the aid of any other person. But PW2 would say that only when people who were in the river told him, he realized that the person who swam away was the revision petitioner. In any view of the matter, the veracity of the prosecution case is doubtful and the revision petitioner is entitled to get the benefit of that doubt. 20. The trial court as well as the appellate court, without noticing the major defects in the inventory prepared, and without verifying the identity of the revision petitioner properly, convicted and sentenced him under Section 55(g) of the Abkari Act, and so it is liable to be interfered with. 21. In the result, the revision petition is allowed, setting aside the conviction and sentence imposed on the revision petitioner by the courts below. The revision ``` CRL.REV.PET NO. 1687 OF 2016 ``` **==> picture [45 x 9] intentionally omitted <==** petitioner is found not guilty of the offence alleged under Section 55(g) of the Abkari Act and he is acquitted under Section 235(1) of Cr.P.C. His bail bond is cancelled and he is set at liberty forthwith. The revision petition accordingly stands allowed. **Sd/-** **SOPHY THOMAS JUDGE** LU