N. Sathyan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 09TH DAY OF JUNE 2020 / 19TH JYAISHTA, 1942** **Crl.Rev.Pet.No.436 OF 2013** **AGAINST THE JUDGMENT IN CRA 326/2011 DATED 11-02-2013 OF ADDITIONAL SESSIONS COURT, KASARAGODE** **AGAINST THE JUDGMENT IN SC 295/2010 DATED 13-12-2011 OF ASSISTANT SESSIONS COURT, KASARAGOD** ## **REVISION PETITIONER/ACCUSED:** **N. SATHYAN AGED 36 YEARS S/O.LATE APPU VAIDYAN, RESIDING AT DWARAKA NAGAR, KASARAGOD MUNICIPALITY, KASARAGOD TALUK.** **BY ADVS. SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04.06.2020, THE COURT ON 09.06.2020 PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.436 OF 2013** **2** ## **R. NARAYANA PISHARADI, J** **-----------------** ----------------------------------- **Crl.R.P No. 436 of 2013** ----------------------------------------------------Dated this the 9[th] day of June, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C No. 295/2010 on the file of the Court of the Assistant Sessions Judge, Kasaragod. 2. The prosecution case is that, on 10.10.2007, at about 13:20 hours, at the road near Murali Mukund Auditorium in Kasaragod Municipality, PW1 Preventive Officer, who was attached to the Excise Special Squad, Kasaragod found the petitioner having in his possession 30 packets, each packet containing 100 ml. of arrack, in a plastic bag. 3. The trial court framed charge against the petitioner for the offence punishable under Section 8(2) of the Abkari Act. The petitioner pleaded not guilty to the offence and claimed to be tried. 4. The prosecution examined PW1 to PW5 and marked Exts.P1 to P9 documents. No evidence was adduced by the petitioner/accused. **Crl.Rev.Pet.No.436 OF 2013** **3** 5. The trial court found the petitioner guilty of the offence punishable under Section 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of four years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. 6. The petitioner filed Crl.A.No.326/2011 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 the learned counsel for the petitioner and also the learned Public Prosecutor. Perused the records. 9. PW1 is the Preventive Officer who detected the offence. PW2 is another Preventive Officer, who was in the excise party led by PW1. They have given evidence regarding the occurrence in detail. 10. The independent witness, who was examined as PW3, did not support the prosecution case. He denied having seen the incident. **Crl.Rev.Pet.No.436 OF 2013** **4** 11. Ext.P8 is the chemical examination report in respect of the sample of the liquid which was sent to the laboratory for examination. It shows that the sample of liquid contained 29.57% by volume of ethyl alcohol. 12. 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 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 certificate of inventory issued by the learned Magistrate is also not proper and it cannot be accepted as primary evidence in respect of the offence allegedly committed. 13. Section 53A of the Abkari Act provides for preparation of inventory of liquor seized under the Act, by the authorised officer and also certification of such inventory by the Magistrate concerned. Section 53A(5) of the Abkari 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 **Crl.Rev.Pet.No.436 OF 2013** **5** the inventory certified by the Magistrate, as primary evidence in respect of such offence. 14. 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. 15. However, when the procedure under Section 53A of the Abkari 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, then seizure of such liquor itself becomes a doubtful matter. The accused will then be entitled to take advantage of such doubt. 16. In the instant case, the evidence of PW1 would show that, out of the 30 packets of liquor allegedly seized from the possession of the petitioner, the liquid from three packets was poured into a bottle and it was taken as sample at the spot of the occurrence itself. The sample thus taken was produced before the court as per Ext.P6 **Crl.Rev.Pet.No.436 OF 2013** **6** property list and it was forwarded for chemical analysis. The bulk quantity of liquor, after taking sample, was not produced before the court immediately after the seizure or during the trial of the case. 17. The evidence of PW1 and the recitals in Ext.P3 seizure mahazar would show that PW1 had put the remaining 27 packets of liquor (after taking sample) in the plastic bag and sealed the bag and affixed label bearing his signature and also the signature of the witnesses and the accused on the bag and that he produced it before the Excise Inspector (PW4) concerned. 18. The evidence of PW4 would show that he registered Ext.P5 crime and occurrence report and produced the sample bottle before the court as per Ext.P6 property list. He produced the remaining bulk quantity of liquor before the Assistant Excise Commissioner. 19. The Assistant Excise Commissioner submitted Ext.P4 inventory signed by him before the Judicial First Class Magistrate concerned along with a report requesting to certify the inventory. Learned Magistrate affixed a seal on Ext.P4 inventory. 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. Ext.P4 inventory bears the signature of PW4 Excise Inspector, with the date 10.10.2007, that is **Crl.Rev.Pet.No.436 OF 2013** **7** the date of the occurrence. It indicates that the inventory was not prepared by the Assistant Excise Commissioner, who is the authorised officer, but it was prepared by PW4 Excise Inspector. 21. 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 or the investigating 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. 22. When the inventory is prepared by an officer not authorised under the Abkari Act it cannot be acted upon by the court and then the entire contraband should be produced before the court (see **Chandran @ Chandrasekharan v. State of Kerala: 2016 (5) KHC 650: 2016(4) KLT 727** ). 23. The property described in Ext.P4 inventory is a sealed and labelled plastic bag, which allegedly contained 27 packets of arrack. What was produced before the learned Magistrate for certification was **Crl.Rev.Pet.No.436 OF 2013** **8** a sealed plastic bag which allegedly contained 27 packets of arrack. The certification of inventory by the learned Magistrate should have been 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 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 signed below it. 25. The certificate above, in the form of a seal, affixed by the learned Magistrate on Ext.P4 inventory, would indicate that he had not actually verified the particulars of the packets of liquor contained in the sealed plastic bag which was produced before him. The certificate does not reveal whether the plastic bag, which was produced before the learned Magistrate, contained 27 packets of liquid. There is **Crl.Rev.Pet.No.436 OF 2013** **9** nothing to show that the learned Magistrate had opened the plastic bag which was sealed and verified its contents. 26. 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 issued by the learned Magistrate in this case cannot be treated as primary evidence in respect of the offence allegedly committed by the petitioner. 27. The bulk quantity of the arrack allegedly seized from the possession of the petitioner was not produced before the trial court. No evidence was also adduced regarding the disposal of the bulk quantity of the liquor. The inventory prepared and certified under Section 53A(2) of the Act is infirm and it cannot be treated as primary evidence as envisaged under Section 53A(5) of the Act. The sample sent for analysis was not any representative sample drawn in the presence of the Magistrate. 28. The above mentioned vital aspects have not been considered by the trial court and the appellate court 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 **Crl.Rev.Pet.No.436 OF 2013** **10** acquitted. 29. Consequently, the revision petition is allowed. Conviction and sentence against the petitioner/accused under Section 8(2) of the Abkari Act are set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. Bail bond, if any, executed by him stands cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. **SD/-R. NARAYANA PISHARADI JUDGE** lsn