Baby vs State Of Kerala
2021 Latest Caselaw 6386 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

   TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942

                         CRL.A.No.2438 OF 2007

AGAINST THE ORDER/JUDGMENT IN SC 304/2006 DATED 17-11-2007 OF IVTH
               ADDITIONAL SESSIONS JUDGE (ADHOC-II)

AGAINST THE ORDER/JUDGMENT IN CP 72/2005 OF JUDICIAL MAGISTRATE OF
                       FIRST CLASS ,ADIMALI


APPELLANTS:

      1        BABY S/O.DEVASSIA,
               KALLUMKAL VEEDU, THOKKUPARA KARA,, PALLIVASAL
               VILLAGE, DEVIKULAM TALUK.

      2        KURIAKOSE SO.THOMAS
               ELAMANAYIL VEEDU, THOKKUPARA KARA,, VELLATHOOVAL
               VILLAGE, DEVIKULAM TALUK.

               BY ADV. SRI.K.K.CHANDRAN PILLAI

RESPONDENT:

               STATE OF KERALA
               REP. BY THE EXCISE INSPECTOR, ADIMALY/DIRECTOR,
               GENERAL OF PROSECUTIONS, HIGH COURT OF KERALA,,
               ERNAKULAM.

               R1 BY PUBLIC PROSECUTOR

OTHER PRESENT:

               SMT.S.L.SYLAJA, PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2438 OF 2007                  2




                        P.V.KUNHIKRISHNAN, J
                        --------------------------------
                           CRL.A.No.2438 OF 2007
                         -------------------------------
                                JUDGMENT

Dated this the 23rd day of February 2021

Appellants are the accused in S.C.No.304/2006, on

the file of the IVth Additional Sessions Judge (Adhoc-II),

Thodupuzha. The above case is charge sheeted by the

Excise Inspector, Adimaly against the appellants alleging

the offence punishable under Sections 55(g) and 8(1)

and (2) of the Abkari Act.

2. The prosecution case is that on 22.8.2004, at

3.00 pm, the accused were found distilling arrack near

Ambazhachal Kambiline road to Niravath estate. PW3-the

Excise Inspector detected the offence. He arrested the

accused, seized the utensils used for distillation of arrack

by the accused as well as distilled arrack and wash.

Hence, it is alleged that the accused committed the

offences.

3. To substantiate the case, the prosecution

examined PW1 to PW4. DW1 and DW2 are also examined

on side of the prosecution. MO1 to MO9 are the material

objects. Exts.P1 to P6 are also marked on the side of the

prosecution.

4. After going through the evidence and

documents, the trial Court found that the accused

committed the offence punishable under Section 55(b)

and (g) of the Abkari Act. The accused were sentenced

to undergo Rigorous imprisonment for three years and to

pay a fine of Rs.1,00,000/- each. In default of payment

of fine, the accused are directed to undergo rigorous

imprisonment for three months for offence under Section

55(b) of the Abkari Act. No separate sentence is passed

for offence under Section 55(g) of the Abkari Act.

Aggrieved by the conviction and sentence, this Criminal

Appeal is filed by the appellants.

5. Heard the learned counsel for the appellants

and the learned Public Prosecutor.

6. The counsel for the appellants submitted that

there is total violation of Section 53A of the Abkari Act

and the accused are entitled to benefit of doubt on that

simple reason. The counsel takes through Ext.P1 seizure

Mahazar. The counsel submitted that no inventory is

prepared by the officer concerned. The wash seized from

the possession of the accused was destroyed from the

spot itself without preparing an inventory. The counsel

relied on decision in Appu v. State of Kerala

[2016(5)KHC 310] and Damodaran.C. v Station House

Officer and Another [2007(4)KHC 936] .

7. The learned Public Prosecutor submitted that,

based on the oral and documentary evidence, the offence

against the accused is proved, and there is nothing to

interfere with the conviction and sentence imposed in this

case. But the learned Public Prosecutor submitted that

there is no inventory prepared.

8. The point to be decided is whether the accused

committed the offence under Section 55(b) and

(g) of the Abkari Act.

9. I perused Ext.P1 seizure mahazar. Perusal of

Ext.P1 mahazar its clear that the wash seized from the

spot was destroyed without preparing an inventory. This

court in Appu v. State of Kerala [2016(5)KHC 310]

observed like this:-

"6. Evidently, in this case, a specific contention was taken before the trial court as also before this Court that the articles seized under Section 34 of the Act viz., the residue of wash were destroyed without following the procedures under Section 53A of the Abkari Act. A perusal of the impugned judgment would reveal that the said contention was considered by the trial court and it was not treated as a serious lapse owing to the fact that the counsel for the accused had failed to establish that it is a mandatory procedure. In such circumstances, the question is whether the procedures prescribed under Section 53A of the Abkari Act are mandatory or directory in nature? For consideration of the said issue it is appropriate to refer to the said provision and it reads thus:-

"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 having jurisdiction over the area where the seized liquor, intoxicating drug or articles are stored 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.

(3) Where an application is made under subsection (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 offence."

A perusal of Section 53A of the Act would reveal that it prescribes the manner in which seized liquor, intoxicating drug or article are to be disposed. A careful scanning of the provisions under Section 53A of the Act would reveal that the procedures contemplated under Section 53A(2) of the Act have to be followed before the destruction of

the articles invoking the power under Section 53A. Evidently, it is only the authorised officer who is competent to order for the destruction of the seized articles in terms of the provisions under Section 53A going by provisions under Section 67B of the Act. A perusal of sub-section (2) of Section 53-A would reveal that the authorised officer shall have to 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 were kept, place of origin and other particulars, as the authorised officer may consider relevant to identify the liquor, intoxicating drug or article and then make an application to any Magistrate for the purpose of certifying the correctness of the inventory so prepared. Clause (b) of Section 53A(2) provides that in the presence of such Magistrate photographs of such liquor, intoxicating drug or article and certifying such photographs have to be done. Going by clause (c) of Section 53-A (2) in the presence of such Magistrate representative samples of such liquor, intoxicating drug or article could be drawn after certifying correctness of any list of sample so drawn. Sub-section (5) of Section 53A also assumes relevance. Going by the same, an inventory, the photographs of liquor, intoxicating drug or article or any list of samples drawn in terms of sub-sections (2) and (4) and certified by the Magistrate has to be treated as

primary evidence by a court while trying an offence under the Act. The question whether the procedures thus prescribed under Section 53A are mandatory or not was considered by this Court in Damodaran's case (supra). This Court held that an excise official or a police officer who detects offences under the provisions of Abkari Act is under the bounden duty to follow these provisions of the Act and that the said procedures prescribed under Section 53-A are mandatory in nature. I may hasten to add that in a case where the procedures which were to be followed in terms of the decision in Ravi's case (supra) were scrupulously followed or in other words, the factum regarding the seizure of the article under Section 34 of the Act was reported to the court forthwith and the seized articles were produced before the court without any delay and delay, if any, was explained the failure to follow the procedures under Section 53A would not be fatal to the prosecution case. But, a case where such articles were destroyed even without following the procedures to be followed by virtue of Ravi's case (supra) the failure to follow the procedures prescribed under Section 53-A would be fatal to the prosecution. In a case where the prosecution asserts that seizure was effected from a contraband liquor or a material which was used for preparing illicit liquor in huge quantity and the said huge quantity were destroyed without following the procedures and in the absence of any evidence to show that a sample was taken from the residue which were destroyed, it would amount to deprivation of the statutory safeguard

which is embodied in Section 53-A of the Act. Even if the detecting officer or the authorised officer is of the view that the quantity of such liquor were to be destroyed and at the same time, the person who was found in possession of such materials was to be prosecuted, for a successful prosecution the procedures under Section 53-A are to be followed and in such circumstances, in terms of subsection (5) of Section 53-A despite the destruction of such articles the inventory, the photographs along with the certificate by the Magistrate would act as a primary evidence in respect of such offence. When that be the position, the failure of following the procedures under Section 53A scrupulously would definitely vitiate the very prosecution itself. These crucial aspects were not at all seriously taken note of by the court below. There cannot be any doubt with respect to the fact that when the conclusions were arrived at by a court without seriously taking note of materials which require serious consideration or if irrelevant materials were given due consideration the appreciation would amount to perverseness. In this case, the aforesaid crucial aspects would undoubtedly reveal that the appreciation of the evidence on record by the court below was utterly perverse. That apart, it is evident that the failure to comply with the procedures referred to hereinbefore in detail virtually vitiated the conviction of the accused. In such circumstances, the conviction entered against the appellant and the consequential sentence imposed on him as per the impugned judgment require appellate

interference."

10. The same principle is laid down in

Damodaran.C. v Station House Officer and Another

[2007(4)SCC 936]. Therefore, it is clear that, if there is

violation of Section 53A the entire prosecution will vitiate

on that ground itself.

11. Admittedly, in this case the inventory is not

prepared and there is violation of Section 53 A in the

Abkari Act. In the light of the above discussions, I think

the appellants are entitled to the benefit of doubt.

             Therefore, this Criminal Appeal is allowed.                The

       conviction       and         sentence       imposed       on     the

       appellants/accused       as      per       the    judgment     dated

17/11/2007 in S.C. No.304/2006, on the file of the IVth

Additional Sessions Judge (Adhoc-II), Thodupuzha is set

aside. The appellants are set at liberty. The bail bond, if

any, executed by the appellants, is cancelled.

Sd/-

P.V.KUNHIKRISHNAN JUDGE ska