Kerala High Court

B.K.Narayanan @ Meesa Narayanan vs State Of Kerala on 21 February, 2025

Criminal Appeal No.98 of 2014
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                                                  2025:KER:15265
              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                THE HONOURABLE MRS. JUSTICE C.S. SUDHA

 FRIDAY, THE 21ST DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946

                                CRL.A NO. 98 OF 2014

        AGAINST THE JUDGMENT DATED 23.12.2013 IN SC NO.723 OF

2012 ON THE FILE OF THE COURT OF SESSION, KASARAGOD.

APPELLANT/ACCUSED:

              B.K.NARAYANAN @ MEESA NARAYANAN,
              AGED 61 YEARS,
              S/O.KOTTAN, KARAKKUZHI, AJANUR VILLAGE,
              HOSDURG TALUK, KASARAGOD DISTRICT.


              BY ADVS.
              SRI.T.K.VIPINDAS
              SRI.K.M.MUHAMMED HUSSAIN
              SRI.K.V.SREE VINAYAKAN




RESPONDENT/COMPLAINANT:

              STATE OF KERALA,
              RTEPRESENTED BY THE PUBLIC PROSECUTOR,
              HIGH COURT OF KERALA, ERNAKULAM-682 031.
              REPRESENTING BY THE EXCISE INSPECTOR,
              HOSDURG EXCISE RANGE.

              BY ADV.
              SMT. SHEEBA THOMAS, PUBLIC PROSECUTOR


       THIS    CRIMINAL         APPEAL   HAVING   BEEN   FINALLY   HEARD   ON
17.02.2025, THE COURT ON 21.02.2025 DELIVERED THE FOLLOWING:
 Criminal Appeal No.98 of 2014
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                                                                 2025:KER:15265


                                  C.S.SUDHA, J.
                -------------------------------------------------------
                          Criminal Appeal No.98 of 2014
                 ------------------------------------------------------
                  Dated this the 21st day of February 2025

                                JUDGMENT

This appeal under Section 374(2) Cr.P.C. has been filed

by the appellant, the sole accused in S.C.No.723 of 2012 on the file

of the Court of Session, Kasaragod challenging the judgment dated

23/12/2013 by which he has been convicted and sentenced for the

offence punishable under Section 55(a) of the Kerala Abkari Act,

1 of 1077 (the Act).

2. The prosecution case is that on 28/12/2010 at about

04:30 p.m., the accused was found transporting 30 bottles of Indian

Made Foreign Liquor (IMFL) having capacity of 180 ml each

meant for sale in Puthuchery State alone for sale in Kerala in

contravention of the provisions of the Act at a place called

Karakuzhi on the eastern side of Moolakkandam-Vellikoth road,

Ajanur Village, Hosdurg Taluk. Hence, the accused as per the final

2025:KER:15265 report/charge sheet is alleged to have committed the offence

punishable under the aforementioned Section.

3. On the final report being submitted, the jurisdictional

magistrate after complying with the statutory formalities,

committed the case to the Court of Session, Kasaragod, which took

the case on file as S.C.No.723/2012. The case was then made over

to the Additional District and Sessions Judge-III, Kasaragod for

trial and disposal. On appearance of the accused before the trial

court, a charge under Section 55(a) of the Act was framed, read

over and explained to the accused to which he pleaded not guilty.

4. On behalf of the prosecution, PW1 to PW5 were

examined and Exts.P1 to P13 were marked in support of the case.

After the close of the prosecution evidence, the accused was

questioned under Section 313(1)(b) Cr.P.C. with regard to the

incriminating circumstances appearing against him in the evidence

of the prosecution. The accused denied all those circumstances and

maintained his innocence.

5. On a consideration of the oral and documentary

evidence and after hearing both sides, the trial court by the

2025:KER:15265 impugned judgment found the accused guilty of the offence

punishable under Section 55(a) of the Act and hence sentenced him

to rigorous imprisonment for two years and to a fine of ₹1,00,000/-

and in default to rigorous imprisonment for a period of six months.

Set off under Section 428 Cr.P.C. has been allowed. Aggrieved, the

accused has come up in appeal.

6. The only point that arises for consideration in this

appeal is whether the conviction entered and sentence passed

against the accused/appellant by the trial court are sustainable or

not.

7. Heard both sides.

8. I briefly refer to the evidence on record relied on

by the prosecution in support of the case. PW4, Excise Inspector,

Excise Special Squad, Kasaragod deposed that on 28/12/2010 he

was on patrol duty in the department jeep along with his party. By

about 04:15 p.m. while they reached in front of the office of the

DYFI, Karakuzhi situated by the side of Moolakkandam-Vellikoth

road, they saw the accused coming from the opposite direction

carrying a white plastic sack. On seeing the excise party, the

2025:KER:15265 accused became perplexed and made an attempt to turn back and

walk away. On suspicion arising, they intercepted the accused. On

opening the plastic sack in the possession of the accused, it was

found to contain 30 bottles each having a capacity of 180ml with a

light red coloured liquid in it. The bottles had labels on it, which

read - 'Kerala Grape Brandy, 180ml, Blended and bottled by

Ravikumar Distellery Ltd. Puduchary'. PW4 opened one of the

bottles and tested the liquid by smelling and tasting it. He was

convinced that the content was IMFL. There was no label or sticker

of the Kerala State Beverages Corporation on any of the bottles.

Therefore, he arrested the accused and seized the contraband

articles as per Ext.P1 seizure mahazar. As all the bottles contained

the same liquid, he drew a sample of 350ml in a bottle having a

capacity of 375ml. The said bottle was closed, sealed and labelled

and his personal seal affixed. Ext.P5 is the copy of the specimen

impression of the seal, which was affixed on the sample bottle. The

remaining bottles as well as the two empty bottles from which the

sample was drawn was placed inside the sack which was also

sealed and labelled and his personal seal affixed. The accused and

2025:KER:15265 witnesses had affixed their signatures on the labels. Thereafter, he

entrusted the accused the contraband articles and the

contemporaneous records to PW5, Preventive Officer, Excise

Range Office, Kasaragod. PW4 further deposed that he had

conducted the investigation in this case and on completion of

investigation, submitted the charge sheet/final report before the

court.

8.1. PW1, Excise Guard, Excise Special Squad,

Kasaragod deposed that he was present in the team along with PW4

when the detection, search and seizure was effected. He also

supports the case of PW4.

8.2. PW2 and PW3 are the independent witnesses.

PW3 admitted his signature in Ext.P1 mahazar, but denied having

seen the incident or stating to the police that he had seen the

incident. However, PW2 even went to the extent of denying his

signature in Ext.P1 mahazar and denied the witnessing of the

incident.

8.3. PW5, Preventive Officer, Excise Range Office,

Kasaragod deposed that on 28/12/2010 he was the officer-in-charge

2025:KER:15265 of the Excise Range Office, Kasaragod PW4 had handed over the

accused, the contraband articles and the case records based on

which he registered crime no.71/2010, that is, Ext.P10 crime and

occurrence report. He prepared Ext.P11 property list and produced

the contraband articles before the court as per Ext.P11. Ext.P12 is

the copy of the forwarding note submitted to the court requesting

the sample to be sent for chemical examination. He also prepared

Ext.P13 inventory report and produced the remaining contraband

articles before the Deputy Excise Commissioner, Kasaragod.

9. As pointed out by the learned counsel for the

appellant/accused in Ext.P1 mahazar, the 30 bottles alleged to have

been seized from the accused contained a liquid which was light

red in colour. However, in Ext.P9 chemical report the analyst

stated that the sample bottles contained liquid which was amber in

colour.

10. Section 53A(1) of the Act says that

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,

2025:KER:15265 constraints of proper storage space or any other relevant

consideration, by notification in the official Gazette, specify such

liqour, intoxicating drug or article which shall, as soon as may be

after his 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 specified. The

State Government has issued notification in S.R.O.No.740/2002 as

G.O.(P) No.139/2002/TD dated 19/09/2002 in exercise of the

powers conferred by Section 53A (1) of the Act. As per the

notification, spirit, IMFL and arrack have been specified as liquors

which may be disposed of by the authorised officers as provided in

Section 53A of the Act. Section 53A(2) of the Act provides that

where any such notified liqour, intoxicating drug or article has been

seized under the Act, the authorised officer shall prepare an

inventory of such liquor, intoxicating drug or article containing

such details relating to the 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

2025:KER:15265 authorised officer may consider relevant to identify the liquor,

intoxicating drug or article in any proceedings under the 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; (b) by 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. Sub Section (5) to Section 53A of the

Act says that notwithstanding anything contained in the Evidence

Act or the Cr.P.C., any Court trying an offence under the Act, shall

treat the inventory, the photographs of liquor, intoxicating drug or

article and any list of samples drawn under sub-section (2) and

certified by the Magistrate, as primary evidence in respect of such

offence.

10.1. The very purpose of the provisions contained in

Section 53A of the Act is disposal of large quantity of seized

2025:KER:15265 contraband liquor immediately after the seizure on retaining

evidence regarding its seizure. If the authorised officer and the

Magistrate follow the mandate under Section 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

liqour and the list of samples drawn in his presence shall be treated

by the court as primary evidence of the offence. However, when

the procedure under Section 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. (See Balakrishna Rai v. State of Kerala, 2020 (3)

KHC 286).

10.2. In the instant case, the evidence of PW4 would

show that out of the 30 bottles IMFL alleged to have been seized

2025:KER:15265 from the possession of the accused/appellant, sample was drawn

from two bottles which sample was taken in a bottle having a

capacity 375 ml. The sample thus taken was produced before the

court as per Ext.P11 property list on the date of the occurrence

itself and the sample was forwarded for chemical analysis as per

Ext.P12 forwarding note. Ext.P9 is the chemical report relating to

the aforesaid sample. The testimony of PW4 and PW1 and the

recitals in Ext.P1 seizure mahazar would show that PW1 had put

the 28 bottles of IMFL along with the two empty bottles into the

white plastic bag that was being carried by the accused ; sealed the

bag ; affixed label bearing his signature and also the signature of

the witnesses and the accused on the bag and he produced the same

before the Deputy Excise Commissioner along with Ext.P13

inventory. The Deputy Excise Commissioner submitted the

inventory signed by him also before the jurisdictional magistrate

concerned along with an application specifying all the purposes

mentioned under Section 53A(2) of the Act. Ext.P13 inventory

report apparently was not prepared by the Deputy Excise

Commissioner, the authorised officer, though it was signed by him

2025:KER:15265 as PW5 himself has deposed that it was he who had prepared the

same. PW5 admittedly was not an authorised officer under

Section 67B of the Act. Therefore, he was incompetent to prepare

the inventory under sub-section (2) of Section 53A of the Act.

Ext.P13 was therefore prepared by an officer not authorised under

the Act and hence the same cannot be acted upon as the same is

patently illegal. When Ext.P13 could not have been acted upon,

the entire contraband should have been produced before the trial

court. However, in this case the contraband articles were not

produced before the court and instead of that, the prosecution relied

on Ext.P13 which is patently illegal. (See Chandran @

Chandrasekharan v. State of Kerala, 2016 (5) KHC 650).

11. The property described in Ext.P13 is a sealed and

labelled white plastic sack allegedly containing 28 bottles of IMFL

and two empty bottles from which the sample was drawn. The

certificate of inventory by the magistrate should have been done in

respect of the bottles containing IMFL. The learned magistrate has

certified the inventory by affixing a seal as follows:-

2025:KER:15265 CERTIFICATE "Certified that this is the representative photograph sample................................................... .............................................................

                 taken from ........ verified in Cr.No.

                 .....................of             Hosdurg Range.
                                          SHO.............
                 on 25-05-2011."

After affixing the aforesaid seal, the magistrate filled up the blanks

in the above seal with the crime number of the case and name of

the Excise range office and then signed below it. There is also a

copy of certificate which reads thus -

CERTIFICATE "I certify that inventory of Thondy Articles in 71/2010 Hosdurg Excise Range is Cr.No................................................ correct. The seal is found to be intact and the photograph of Thondy Articles is taken in my presence 4.30.P.M. this day at the by the photographer at .........................on Hosdurg Excise Range Office .....................

Sd/-

Place: Hosdurg, Judicial First Class Magistarate-I, Date:25-05-2011. Hosdurg"

The photograph produced, that is Ext.P6, shows a white sack sealed

and labelled. The next photograph, that is Ext.P6(a), shows the

sack opened and six bottles kept outside the sack. The aforesaid

certificates of the magistrate clearly indicate that he had not

actually verified the particulars of bottles of liquor contained in the

sealed white plastic sack which were produced before him. The

2025:KER:15265 certificate does not reveal whether the sack which was produced

before the magistrate contained 30 bottles of IMFL. There is

nothing to show that the magistrate had opened the sack which was

sealed and had verified its contents. As held in Balakrishna Rai

(Supra), the practice of certifying the inventory by affixing a seal

and filling up the blank spaces in the seal has to be depracated.