Reghu @ Cardose S/O Kesavan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 27TH DAY OF NOVEMBER 2020 / 6TH AGRAHAYANA, 1942** **Crl.Rev.Pet.No.1264 OF 2015** **CRA 120/2013 OF II ADDITIONAL SESSIONS COURT, KOLLAM** **SC 846/2010 OF ASSISTANT SESSIONS COURT, KARUNAGAPPALLY** ## **REVISION PETITIONER/S:** **REGHU @ CARDOSE S/O.KESAVAN, MULLIYIL HOUSE, MENAMPALLY MURI, CHAVARA VILLAGE, KARUNAGAPPALLY, KOLLAM DISTRICT.** **BY ADVS. SRI.K.SIJU SRI.S.ABHILASH** ## **RESPONDENT/S:** **STATE OF KERALA THROUGH THE EXCISE INSPECTOR, KARUNAGAPPALLY EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** ## **SR.PP.M.SBREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRRP No.1264/2015 ..2.. ## **O R D E R** ||The revision petitioner was the accused in SC| |---|---| ||No. 846 of 2010 on the file of the Assistant| ||Sessions Court, Karunagappally and the| ||appellant in Crl. Appeal No. 120 of 2013 on| ||the file of the II Additional Sessions Court,| ||Kollam. The offence alleged against the| ||accused is punishable under Section 55(i) of| ||the Abkari Act, 1 of 1077 (hereinafter| ||referred to as, “Act”).| |2.|The prosecution case, in brief, is that on| ||09.09.2008 at 11.45 am, the accused was found| ||selling<br>Indian<br>Made<br>Foreign<br>Liquor| ||(hereinafter referred to as, “IMFL”) to| ||another person and put the sale proceeds in| ||his pocket on the panchayat road adjacent to| ||the house of one Mulliyil Abraham, located on| ||the northern side of the road. On seeing the| ||excise party, it is alleged that, the accused| CRRP No.1264/2015 ..3.. made an attempt to run away from the place. However, he was restrained by the excise party. On being questioned, six bottles of IMFL were seized from the custody of the accused, which were brought for sale, and thereby, the accused committed the offence under Section 55(i) of the Act. 3. During the trial of the case, PWs 1 to 4 were examined and marked Exts.P1 to P8 and MO1 on prosecution side. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure. He denied all the incriminating circumstances appearing in the evidence against him. When the accused was called upon to enter on his defence, no defence evidence was adduced. 4. After the trial, on appreciation of the entire evidence, the trial court convicted and sentenced the accused to undergo simple imprisonment for one year and to pay a fine of CRRP No.1264/2015 **==> picture [31 x 8] intentionally omitted <==** Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for 30 days more for the offence punishable under Section 55(i) of the Act. 5. Challenging the conviction and sentence imposed by the trial court, the accused preferred an appeal before the Sessions Court, Kollam. The learned Sessions Court made over the case to the II Additional Sessions Court, Kollam. By its judgment dated 31.07.2015, the learned Additional Sessions Judge dismissed the appeal, confirming the conviction and sentence imposed by the trial court. 6. Heard Sri.Siju Kamalasanan, the learned counsel for the revision petitioner; and Sri.M.S.Breez, the learned Senior Public Prosecutor for the respondent-State. 7. PW1, the Excise Inspector, Excise Circle Office, Karunagappally, along with CW2, the Preventive Officer attached to his office, seized six bottles of IMFL having brand name CRRP No.1264/2015 **==> picture [31 x 8] intentionally omitted <==** “New Jawan XXX Special Rum” from the accused when the accused was selling the contraband to one of his customers in front of the house of one Mulliyil Abraham on the northern side of panchayat road, which runs from Bharanikkavu Temple to Menamppally Kadavu. According to PW1, on seeing the excise party, the person, who consumed liquor and paid its price to the accused, ran away from the place of occurrence, leaving the glass tumbler, in which he consumed liquor, by the side of the road. The excise party, however, succeeded to prevent the accused from escaping the place and recovered six bottles of IMFL from the custody of the accused. The accused was arrested from the spot. According to him, a sample of 200 ml of liquor was taken in a bottle of 375 ml for the purpose of chemical examination. That apart, sale proceeds of Rs.60/- was also recovered from the pocket of the accused. Ext.P1 mahazar was prepared at CRRP No.1264/2015 ..6.. the spot. 8. Consequent to the detection of crime, PW3, the Excise Inspector, Karunagappally Excise Range, registered Ext.P4 crime and occurrence report. By virtue of Ext.P5 property list along with Ext.P6 requisition for chemical examination of the sample, PW3 forwarded the accused and material object to the Judicial First Class Magistrate Court, Karunagappally. After completing the investigation, PW4 laid final report alleging the offence punishable under Section 55(i) of the Act against the accused. 9. The learned counsel for the revision petitioner submitted that Ext.P8 Inventory Certificate in the aforesaid crime was not prepared in accordance with Section 53A(2) of the Act. Relying on the decision reported in **Balakrishna Rai** v. **State of Kerala** [2020 (3) KLT 727], the learned counsel further submitted that PW3 was not an authorized officer as contemplated under Section 53A(2) CRRP No.1264/2015 ..7.. of the Act, and as such, the very foundation of the case is shaken. 10.Section 53A(2) of the Act reads as follows; “(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 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.” Going by the provisions under Section 53A(2) of the Act, it is clear that the authorized officer, as per the scheme of the Act, is the Deputy Commissioner of Excise Range, Kollam. CRRP No.1264/2015 **==> picture [31 x 8] intentionally omitted <==** The Deputy Commissioner of Excise Range, Kollam was not examined as a witness for the prosecution before the trial court. Further, it is evident from the records in this case that the Deputy Commissioner of Excise Range, Kollam filed an application on 07.12.2012 before the learned magistrate seeking permission to prepare and submit the inventory of the items to be disposed of as contemplated under Section 53A of the Act. It is evident from the letter dated 07.12.2012 that the Deputy Excise Commissioner, Kollam was aware of the fact that he was the competent officer under Section 53A(2) of the Act to prepare the inventory as contemplated under the Act. Strange as it may sound, on 07.12.2012 itself he filed an application before the court to certify the correctness of the inventory prepared. It is very clear that Ext.P8 inventory was submitted before the court along with two requests of the Deputy Excise CRRP No.1264/2015 **==> picture [31 x 8] intentionally omitted <==** Commissioner. Firstly, the request seeking permission to prepare an inventory and secondly, the request seeking to certify the correctness of the inventory prepared. This is a clear indication that the authorized officer did not prepare the inventory in accordance with the scheme of the Act. However, he acted upon the inventory prepared by PW3 and endorsed the same with his signature and produced before the learned magistrate as if it was an inventory prepared by him. Going by Section 53A(2) of the Act, it is clear that the authorized officer is obliged to prepare an inventory of such liquor seized by the detecting officer, stating all the details contemplated under Section 53A(2) of the Act for the purpose of certifying the correctness of the inventory so prepared. In the case on hand, this is not done. No delegation is provided under Section 53A(2) of the Act to prepare the inventory as per the scheme of the CRRP No.1264/2015 **==> picture [37 x 8] intentionally omitted <==** Act. Unless and until such delegation is not provided under the Act, the Deputy Excise Commissioner was obliged to prepare the inventory in connection with this case. 11.PWs 1, 3 and 4 alone supported the prosecution case. PW2, the independent witness, who alleged to have signed the mahazar, turned hostile to the prosecution. Since Ext.P8 inventory was not prepared by the authorized officer in accordance with law, the very foundation of the prosecution case is broken. Hence, the consequent trial and conviction of the accused for the offence under Section 55(i) of the Act are also bad in law. When the judgment of conviction and sentence is illegal, it is within the domain of the revisional court to get it corrected in revision. Hence, the impugned judgment of conviction and sentence is liable to be set aside. In the result, the revision petition allowed. CRRP No.1264/2015 ..11.. The conviction and sentence imposed against the revision petitioner/accused stand set aside. The revision petitioner/accused is found not guilty of the offence punishable under Section 55(i) of the Act and he is acquitted thereunder. Cancelling his bail bond, this Court directs that he be set at liberty. If any amount is deposited pursuant to an interim order passed by this Court, the same shall be released to the revision petitioner in accordance with law. Pending applications, if any, stand disposed of. **Sd/-** ## **N.ANIL KUMAR** ## **JUDGE** Bka/27.11.2020