Kerala High Court

Babu @ Vishwanathan vs State Of Kerala on 2 June, 2025

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

        THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

MONDAY, THE 2ND DAY OF JUNE 2025 / 12TH JYAISHTA, 1947

                   CRL.A NO. 28 OF 2014

       AGAINST   THE   JUDGMENT   DATED   13.12.2013   IN   SC

NO.791 OF 2012 OF ADDITIONAL SESSIONS COURT - II,

KASARAGOD, KASARAGODE

APPELLANT/ACCUSED:

          BABU @ VISHWANATHAN
          S/O LATE KESHAVAN, KIZHAKKEMURIYIL, VELIYAM
          VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT,
          NOW R/ AT BUILDING OF ABDULLA, K.K. ROAD,
          PERLA, ENMAKAJE VILLAGE, KASARGOD TALUK.


          BY ADV SRI.NANDAGOPAL S.KURUP


RESPONDENTS/STATE & COMPLAINANT:

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

   2      EXCISE INSPECTOR
          KUMBALA EXCISE RANGE, KUMBALA, KASARAGOD.

          PUBLIC PROSECUTOR SMT.SHEEBA THOMAS


       THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 27.05.2025, THE COURT ON 02.06.2025 DELIVERED THE
FOLLOWING:
                                                               2025:KER:38532
Crl.A.No.28/2014                       2



                                                           "C.R"


                   A. BADHARUDEEN, J.
            ================================
                   Crl.Appeal No.28 of 2014
          ================================
               Dated this the 2nd day of June, 2025


                                 ORDER

Challenging the conviction and sentence dated 13.12.2013

imposed against the accused finding him guilty of the offence punishable

under Section 8(2) of the Kerala Abkari Act (hereinafter referred to as

`Abkari Act' for easy reference) in S.C.No.791 of 2012 on the files of

Additional Sessions Court-II, Kasaragode, the accused has come up in

appeal arraying State as the respondent.

2. I shall refer the parties in the appeal as `prosecution' and

`accused' hereinafter for easy reference.

3. The prosecution case is that at about 4 p.m on

13.02.2007, the accused was found in possession of 50 packets of arrack of

100 ml each along the road which leads from Kaikamba to Bayarpadavu

carrying a bag, while the Excise Inspector, Excise Range Office, Kumbala, 2025:KER:38532

was on patrol duty. When the accused was found perplexed, he was

questioned and accordingly the said contraband was taken into custody and

crime was registered alleging commission of the offence punishable under

Section 8(2) of the Abkari Act.

4. On committal of the case before Sessions Court,

Kasaragod, it was made out to the Additional Sessions Court-II,

Kasaragod, and the Additional Sessions Court-II tried the matter after

framing charge for the said offence. PWs 1 to 5 were examined and

Exts.P1 to P13 were marked on the side of the prosecution. Thereafter the

accused was questioned under Section 313(1)(b) of the Code of Criminal

Procedure (`Cr.P.C' for short) and was provided opportunity to seek

defense evidence. But he did not adduce defense evidence.

5. On appreciation of the evidence, the trial court found the

accused guilty for the offence punishable under Section 8(2) of the Abkari

Act and accordingly he was sentenced to undergo rigorous imprisonment

for a period of two years and also to pay fine of Rs.1 lakh and in default,

rigorous imprisonment for 6 months also was imposed.

6. Heard Advocate Nandagopal S.Kurup, the State Brief 2025:KER:38532

appointed to argue for the appellant, as well as the learned Public

Prosecutor in detail. Perused the case records.

7. While challenging the conviction and sentence, it is

pointed out by the learned State Brief that, in this case Ext.P9 inventory

was not prepared by the Assistant Excise Commissioner, as mandated

under Section 53A of the Kerala Abkari Act. Therefore, preparation of

inventory is against the mandate of law and the same will go to the root of

the matter. It is pointed out further that when the procedure under Section

53A of the Abkari Act is not adopted and strictly followed, the preparation

of inventory by an authorised officer, the same is fatal to the prosecution.

That apart, certification of the inventory by the learned Magistrate under

Section 53A of the Act by application of mind also is essential. Otherwise

the recovery of the contraband, which is the primary evidence in respect of

the offence, would be in doubt and the same would throw away the

prosecution case. He has placed decisions of this Court reported in

[2020(3) KHC 286] : 2020 (1) KLD 716 : 2020 (3) KLT 727 : 2020 (3)

KLJ 240 : 2020 KER 20317], Balakrishna Rai v. State of Kerala, and

[2021 KHC 2446 : 2021 KHC OnLine 2446 : 2021 CriLJ NOC 42], 2025:KER:38532

Abhilash v. State of Kerala, in respect of the said contention.

8. It is submitted by the learned Public Prosecutor that as

per Ext.P9 inventory, the entire contraband was produced before the court

and even though the inventory was in the handwriting of the Excise

Inspector Kumbala Range, the Assistant Excise Commissioner actually

prepared and signed in the inventory as the authorised officer, as mandated

under Section 53A(2) of the Abkari Act. Therefore, it could not be held

that there was non compliance of Section 53A in the matter of preparation

of the inventory by the Assistant Excise Commissioner. It is also pointed

out further that even though certificate in the form of a seal was affixed by

the Magistrate in Ext.P7 showing verification of the contraband produced,

it would not be said that the Magistrate did not apply her mind while

certifying the contraband produced. Therefore, the same would not brush

aside the prosecution case. Therefore, the conviction and the sentence

would require no interference.

9. Addressing the rival arguments, the questions to be

considered are:

(i) Whether there was failure on the part of the Assistant 2025:KER:38532

Excise Commissioner in the matter of preparing the inventory under the

mandate of Section 53A of the Abkari Act?

(ii) Whether there is failure on the part of the Magistrate to

verify the material objects within the sweep of Section 53A of the Abkari

Act, as contended by the accused?

(iii) Whether the trial court went wrong in finding that the

accused committed offence under Section 8(2) of the Abkari Act?

(iv) Whether the verdict would require interference?

(v) Order to be passed?

10. Section 53A of the Abkari Act provides as under:

"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, their 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 their 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 2025:KER:38532

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 (3) Where an application is made under sub-section (2) the Magistrate shall, as soon as may be, 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) Ordinance, 2002 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.

Explanation. - 'Article' for the purpose of this section includes jaggery and other like substances, the value of which depreciates in passage of time.]"

2025:KER:38532

11. It is not disputed that the Government notified Assistant

Excise Commissioner as the authorised officer under Section 53A of the

Abkari Act. Going through Ext.P9 inventory in this case, the Circle

Inspector of Excise, Hosdurg, holding the full additional charge of

Assistant Excise Commissioner, had prepared the inventory, though the

Assistant Excise Commissioner also signed in the inventory.

12. As per the ratio laid in Balakrishna Rai v. State of

Kerala's case (supra), Section 53A(2) of the Abkari Act mandates that the

inventory shall be prepared by the authorised officer. But it is not

necessary that he shall prepare the inventory in his own handwriting or that

the physical act of writing or making it shall be done by himself. But, he

shall be the author of the inventory prepared. He shall not simply adopt

the inventory prepared by the detecting officer and mechanically sign it

and submit it before the Magistrate for certification. It is for the authorised

officer to consider and include in the inventory the particulars necessary to

identify the liquor.

13. In the instant case, going by the evidence given by the

authorised officer, it could not be held that there is non compliance of 2025:KER:38532

Section 53A(2) of the Abkari Act in the matter of preparation of inventory

as authorised officer given evidence to the effect that he had prepared

Ext.P9.

14. But the second contention raised by the learned counsel

for the accused that the Magistrate did not verify the material

objects/contraband deserves consideration.

15. In Balakrishna Rai 's case (supra), this Court held as

under:

"The certificate mentioned above, affixed by the learned Magistrate on Ext.P9 inventory, would indicate that he had not actually verified the particulars of the packets of liquor contained in the sealed nylon bag which was produced before him. The certificate does not reveal whether the nylon bag, which was produced before the learned Magistrate, contained 44 packets of liquid. There is nothing to show that the learned Magistrate had opened the nylon bag which was sealed and verified its contents. The practice of certifying the inventory by affixing any seal and by filling up the blank spaces in the seal has to be deprecated. The Magistrates who certify the inventory under the Abkari Act or the Narcotic Drugs and Psychotropic Substances Act have to bear in mind that the certificate being issued by them would be treated as primary evidence in respect of the offence during the trial of the case. Inventory shall be certified by the Magistrates only after carefully verifying the correctness of the 2025:KER:38532

particulars of the property mentioned and described in it. In view of the infirmities pointed out above in the preparation of the inventory by the authorised officer and the certification of the inventory by the learned Magistrate under S.53A of the Act, I find that the certificate of inventory issued by the learned Magistrate in this case cannot be treated as primary evidence in respect of the offence allegedly committed by the petitioner."

This ratio was followed in Abhilash v. State of Kerala's case (supra).

Going through the certification in Ext.P9 herein, the same is, in fact,

affixing a seal after entering the crime number and striking the word

`inconformity' in the inventory. Following the ratio in Balakrishna Rai's

case (supra), when the certification/attestation of the inventory in the

present case was done by the Magistrate by affixing seal of certification,

the said certification of the inventory issued by the Magistrate would not

meet the requirement under Section 53A of the Abkari Act and the same

could not be treated as the primary evidence for the offence, alleged to be

committed by the accused. Thus it has to be held that the second

contention raised by the learned State Brief is sustainable. When the

primary evidence itself is not believable, it could not be held that the