Ravi vs State Of Kerala
2021 Latest Caselaw 10579 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

               THE HONOURABLE MR. JUSTICE T.R.RAVI

     MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943

                      CRL.A.No.2142 OF 2007

  AGAINST THE ORDER/JUDGMENT IN SC 429/2006 DATED 15-10-2007 OF
        ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA



APPELLANT/ACCUSED:

             RAVI, S/O. KUMARAN,
             VATTAPPARAYIL HOUSE,
             ELAPPALLY KARA,
             ELAPPALLY VILLAGE,
             THODUPUZHA TALUK.

             BY ADV. SRI.SOJAN MICHEAL


RESPONDENT/COMPLAINANT:

             STATE OF KERALA,
             REP. BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,
             ERNAKULAM.

             BY SR.PUBLIC PROSECUTOR SRI. P.K. BABU


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2142 OF 2007

                                        2



                                 JUDGMENT

Dated this the 29th day of March 2021

The accused in S.C.No.429/2006 on the file of the

Additional Sessions Court, Adhoc II, Thodupuzha has

filed this appeal being aggrieved by the judgment dated

15.10.2007, whereby he has been found guilty of offence

under Section 55(i) of the Abkari Act and sentenced to

undergo rigorous imprisonment for 6 months and to pay a

fine of ₹1,00,000/- and in default of payment of fine

to undergo rigorous imprisonment for 3 months.

2. The case of the prosecution is that on

07.02.2004 at about 5.30 p.m., the accused was found

selling toddy. The offence is said to have been

detected by PW3, the Preventive Officer, who has

arrested the accused, seized 12 litres of toddy stored

for sale in 2 cans. It is stated that after taking the

sample of the toddy, the remaining toddy was poured out

at the spot itself. The sample taken and the accused,

along with the records of the case, were entrusted with

the Excise Inspector. Before the court below, Exts.P1 CRL.A.No.2142 OF 2007

to P7 were marked and PW1 to PW6 were examined.

Two black jars and Four plastic mugs were produced and

identified as material objects. On the basis of the

evidence on record, the court below found the accused

guilty of the offence and imposed on him the sentence

referred above.

3. Heard Sri.Sojan Micheal, learned counsel on

behalf of the appellant and Sri.P.K.Babu, learned

Senior Public Prosecutor on behalf of the State.

4. The main contention of the counsel for the

appellant is that the prosecution has failed to follow

the procedure prescribed under Section 53A of the

Abkari Act while disposing of the thondi articles.

Admittedly, the entire toddy said to has been seized,

except the sample, has been poured out at the scene of

occurrence itself. Section 53A of the Abkari Act

mandates that while disposing of the contraband

articles, the authorised officer has to prepare an

inventory of such liquor/intoxicating drug and make an

application to any Magistrate having jurisdiction over CRL.A.No.2142 OF 2007

the area for the purpose of certifying the correctness

of the inventory or for taking, in the presence of such

Magistrate, the photographs of such liquor/intoxicated

drug or for permission to draw representative samples

of such liquor. Admittedly, the said procedure has not

been followed while destroying the contraband articles

and all what is available at the time of trial is the

report of the Chemical Examiner regarding the sample,

which he had analysed. This Court has held in several

judgments that the procedure prescribed under Section

53A is mandatory and failure to follow the said

procedure will create suspicion regarding the very

seizure of the contraband. (See Balakrishna Rai v.

State of Kerala [2020 (3) KHC 286], Damodaran v.

Station House Officer and Another [2007 (4) KHC 936]

and Appu v. State of Kerala [2016 (5) KHC 310]). Once

the seizure of the contraband itself is suspect, it

cannot be held that the prosecution has proved beyond

reasonable doubt that the offence has been committed by

the accused.

CRL.A.No.2142 OF 2007

5. In the light of the above settled legal

position, the appellant is entitled to succeed in this

appeal. In the result, the judgment dated 15.10.2007

in S.C.No.429/2006 on the file of the Additional

Sessions Court, Adhoc II, Thodupuzha is set aside. The

appellant is acquitted and set at liberty. The bail

bonds, if any, executed by the appellant or on his

behalf are cancelled.

This appeal stands allowed.

Sd/-

T.R.RAVI, JUDGE

Pn