Girija, D/O.Kamalamma vs State Of Kerala
2021 Latest Caselaw 23305 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
   THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
                          CRL.A NO. 821 OF 2015
[AGAINST THE    JUDGMENT DATED 19.8.2015 IN S.C.No.507 of 2009   ON THE
         FILE OF THE ADDITIONAL DISTRICT & SESSIONS COURT-V,
                           THIRUVANANTHAPURAM]
 (C.P.NO.192/2008 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-1,
                             NEYYATTINKARA)
          [CRIME NO.33/2008 OF THE EXCISE RANGE, AMARAVILA]
APPELLANT/1ST ACCUSED:

           GIRIJA, D/O.KAMALAMMA, THUNDUVILA VEEDU, THELLUKUZHY,
           PAZHAMALA DESOM, PERUNKADAVILA VILLAGE, NEYYATTINKARA
           TALUK.

           BY ADV SRI.S.MOHAMMED AL RAFI



RESPONDENT/COMPLAINANT:

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


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2021,
THE COURT ON 25.11.2021 DELIVERED THE FOLLOWING:
 Crl.Appeal No.821 of 2015          2




                                JUDGMENT

The appellant is the 1st accused in S.C.No.507

of 2019 on the file of the Additional District and

Sessions Court-V, Thiruvananthapuram. The

petitioner has filed this appeal challenging the

conviction and sentence imposed upon her as per

the judgment dated 19.8.2015 therein. As per the

impugned judgment, she was found guilty for the

offences under Sections 8(1) & (2) and 55(g) of

the Abkari Act and sentenced to undergo simple

imprisonment for a period of five years each and

also directed to pay a fine of Rs.3 lakhs each

with a default sentence of simple imprisonment for

one year for the offences under Sections 8(1)&(2)

and 55(g) of the Abkari Act.

2. The prosecution case is as follows:

Upon getting reliable information, the Excise

Party conducted a search on 23.4.2008 in the

evening in the residence of the appellant herein

and upon inspection, it was found that, the

accused had stored 525 litres of wash, 70 litres

of arrack in a secret store constructed in their

house. The utensils for manufacturing the arrack

were also seized from the place of search. Even

though the residence was found open, none of the

accused persons were present at the relevant time.

On the basis of the same, Crime No.33/2008 was

registered by Excise Range, Amaravila for the

offences mentioned above and as part of the

investigation, the appellant herein and her son,

respectively, were arrested and later released on

bail. After completion of the investigation, a

final report was filed against them for the

offences mentioned above.

3. In support of the prosecution, PWs.1 to 10

were examined, Exhibits P1 to P16 were marked.

Material objects 1 and 11 were identified. After

closure of the prosecution evidence incriminating

materials brought out in the trial were put to the

accused while they were examined under Section 313

of Cr.PC. Both the accused persons denied their

involvement and pleaded innocence. No defence

evidence was adduced and after considering the

materials adduced by the prosecution, the Sessions

Court found the appellant/1st accused guilty for

the offences whereas the 2nd accused was found not

guilty. On the basis of the said conviction,

sentence as aforesaid was imposed upon the 1st

accused. This appeal is filed in the aforesaid

circumstances.

4. Heard Sri.S.Mohammed Al Rafi, the learned

counsel for the appellant and Sri.Aravind M.

Mathew, the learned Public Prosecutor for the

respondent.

5. The learned counsel for the appellant

contends that the appellant is innocent of all

allegations and she was falsely implicated. The

main thrust of the argument is that the entire

prosecution is vitiated as there was failure on

the part of the investigating agency in complying

with the mandatory procedure contemplated under

Section 53A of the Abkari Act. It was pointed out

that, the wash which was seized by the Excise

party was disposed of immediately after the

seizure without following the procedure

contemplated under the said provision. It was also

pointed out that no scene mahazar was prepared by

the investigating agency and hence the allegation

that the contraband article were seized from a

secret chamber constructed in the house of the

appellant cannot be believed. The learned counsel

for the appellant relies on the judgments on

Balakrishna Rai v. State of Kerala [2020(3)KHC 286]

and Smithesh v. State of Kerala [2019(2) KLT 974].

6. Per contra, the learned Public Prosecutor

opposes the contentions put forward by the learned

counsel for the appellant. The learned Public

Prosecutor points out that, the contention of non

compliance of Section 53A of the Abkari Act is not

sustainable. The contention regarding the lack of

scene mahazar is also not sustainable as Ext.P7

seizure mahazar contains the details of a secret

chamber which is amply proved through the official

witnesses. In such circumstances, the learned

Public Prosecutor seeks for dismissal of the

appeal.

7. The main contention put forward by the

learned counsel for the appellant is regarding the

non-compliance of the mandatory procedure

contemplated under Section 53A of the Abkari Act.

Section 53A mandates the procedure for disposal of

contraband article seized by the detecting agency.

Sub-section (2) thereof provides that upon seizure

of any notified liquor, intoxicating drug or

article, the authorized 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 packing containers in which they are

kept, place of origin and other particulars, as

the authorized 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 certifying the correctness of the

inventory so prepared.

8. Going by the stipulation contained in

Section 53A of the Abkari Act, it is mandatory for

the detecting officer to prepare an inventory and

get it certified by a Magistrate having

jurisdiction over the area where the seizure was

made. In Sub-section (5) of Section 53A

contemplates that once such an inventory is

prepared following the procedure contemplated

therein, it shall be treated as a primary evidence

in respect of such offence. In such circumstances,

it is not necessary for the prosecution to produce

the entire articles before the court during the

trial and mark the same as material objects. The

production of the inventory as certified by the

jurisdictional Magistrate would be a sufficient

proof of the seizure of the contraband article. In

Balakrishna Rai's case (supra), it was observed by

this Court as follows:

"20. The very purpose of the provisions contained in S.53A of the Act is disposal of large quantity of seized contraband liquor immediately after the seizure on retaining evidence regarding its seizure. If the authorised officer and the Magistrate follow the mandate under S.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 liquor 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 S.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."

In Balakrishna Rai's case (supra) even though this

Court found that an inventory was prepared by the

detecting officer, but the same was not accepted

by this Court on the ground that, the preparation

of such inventory was made by an officer who was

not an authorized officer under the provisions of

the Abkari Act. Same view was taken by this court

in Smithesh's case (supra), as well. In that case

also, the inventory was not produced before the

court but instead only a report of the Magistrate

with regard to the same was produced. In such

circumstances also, the benefit of non production

of the same was given to the accused.

9. From the aforesaid principles, as laid

down by this Court, it is evident that, in the

absence of any inventory prepared by following the

procedure as contemplated under Section 53A of the

Abkari Act, the entire contraband articles have to

be produced before the court and marked as

material object. The failure in doing so is fatal

to the prosecution. In this case, admittedly no

inventory was prepared with respect to 525 litres

of wash. What the detecting officer has done was

that the entire wash was disposed of after

collecting sample therefrom. In such

circumstances, as the entire quantity of 525

litres of wash was not produced before the court

and no inventory as certified by the Magistrate as

contemplated under Section 53A of the Abkari Act

has been produced in lieu thereof, it casts a

clear doubt on the prosecution case with regard to

the seizure of wash.

10. However, the crucial aspect to be noticed

is that the specific allegation of the prosecution

is that, apart from 525 litres of wash, 70 litres

of arrack was also seized from the residence of

the appellant. Exhibit P3 thondi list and Ext.P4

forwarding note would reveal that three cans

containing arrack were submitted before the trial

court immediately after the seizure. The aforesaid

cans are marked in evidence as MO4 to MO6. It is

true that, out of the said cans, MO4 was

containing arrack whereas MO5 and MO6 were found

to be broken at the time of the trial. However,

Exts.P3 and P4 would reveal that the aforesaid

cans were properly sealed and produced before the

court with arrack therein. In such circumstances

as the contraband article ie. the arrack seized

during the seizure was produced before the court

and marked as material object, the non compliance

of Section 53A of the Act does not comes into play

as far as the arrack is concerned. In such

circumstances, even though the prosecution failed

in proving the detection of wash as alleged, owing

to the non-compliance of Section 53A of the Act,

no such finding can be arrived at with regard to

the seizure of arrack. In such circumstances, the

offences alleged against the appellant would still

be attracted on account of the seizure of arrack,

though the same would have an impact on the

gravity of the offence, as seizure of lesser

quantity was proved. In such circumstances, I find

that the interference in the finding of the

Sessions Court in this issue can only be with

respect to the quantity involved in the seizure

and it would not provide any room for a finding of

acquittal of the accused.

11. The next contention is relating to the

lack of failure on the part of the prosecution in

preparing scene mahazar. Exhibit P7 contains a

clear description of the secret chamber

constructed in the residence of the appellant. PW6

is the detecting officer who conducted search and

seizure. He deposed in tune with the contents of

Ext.P7 which is a contemporaneous document. His

evidence is corroborated by PW10 who was the

officer accompanied PW6 during the search and

seizure. His evidence is also in tandem with the

evidence of PW6 and Ext.P7. It is true that the

independent witnesses examined by the prosecution

to prove the seizure turned hostile. However,

merely because of the reason that the independent

witnesses were turned hostile, it is not necessary

to discard the prosecution case as a whole. It is

a well settled position of law that if the

evidence of official witnesses are found to be

credible and trustworthy, the same can be acted

upon. In this case, on scanning through the

evidence of PW6 and PW10 carefully, I could not

find any discrepancy in their evidence so as to

discard the same in its entirety. The contents of

Ext.P7 is clearly in tune with their evidence. In

such circumstances, I do not find any merit in the

argument put forward by the learned counsel for

the appellant that, in the absence of preparation

of scene mahazar, the entire prosecution has

become doubtful. It is reiterated that, since the

details of the secret chamber is specifically

mentioned in Ext.P7 which has been proved through

the evidence of PW6 and PW10, the aforesaid

contention is only to be rejected. On examining

the other materials, no discrepancy with regard to

the sampling and chemical analysis of the said

sample etc. are brought out. In such

circumstances, I do not find any ground to

interfere in the finding of convicting entered

into by the Sessions Court.

12. However, as I have already found that,

the prosecution failed to prove the seizure of 525

litres of wash due to the reasons mentioned above.

After analysing the entire materials, I am of the

view that, the prosecution was successful in

proving the seizure of arrack alone. Since there

is substantial difference in the quantity, I am

inclined to modify the sentence imposed upon the

appellant by reducing the same to two years of

simple imprisonment and a fine of Rs.1,00,000/-

with a default sentence to undergo simple

imprisonment for six months, for the offences

punishable under Sections 8(1) & 2 and two years

of simple imprisonment and a fine of Rs.1,00,000/-

with a default sentence to undergo simple

imprisonment for six months, for the offences

punishable under Section 55(g) of Abkari Act.

Thus, the appeal is allowed in part with the

above observations.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE pkk