IMPORTANT POINT
Under section 53 A of the Abkari Act, the inventory shall only be prepared by the authorised officer. Such inventory shall be certified by the Magistrates only after carefully verifying the correctness of the particulars of the property mentioned and described in it.

ORDER :

The revision petitioner is the accused in the case S.C No.251/2010 on the file of the Court of the Assistant Sessions Judge, Kasaragod.

2. Concurrent verdicts of guilty and conviction recorded against the petitioner by the courts below under Section 8(2) of the Abkari Act, 1077 (hereinafter referred to as 'the Act') are assailed in this revision petition.

3. The prosecution case is that, on 22.08.2008, at about 18:15 hours, at a public road at the place Karyad in Badiadka Village, PW1 Preventive Officer found the petitioner having in his possession 47 polythene covers, each cover containing 100 ml. of arrack, kept in a nylon bag.

4. The trial court framed charge against the petitioner for the offence punishable under Section 8(2) of the Act. The petitioner pleaded not guilty and claimed to be tried.

5. The prosecution examined PW1 to PW5 and marked Exts.P1 to P11 documents. No evidence was adduced by the petitioner/accused.

6. The trial court found the petitioner guilty of the offence punishable under Section 8(2) of the Act and convicted him thereunder. The trial court sentenced him to undergo simple imprisonment for a period of three years and also to pay a fine of Rs.1,00,000/-and in default of payment of fine, to undergo simple imprisonment for a period of six months.

7. The petitioner filed Crl.A.No.137/2012 before the Court of Session, Kasaragod challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction recorded against the petitioner but modified the substantive sentence of imprisonment imposed on him by the trial court and reduced it to simple imprisonment for a period of one year and confirmed the sentence of fine.

8. The concurrent verdicts of guilty and conviction recorded against him by the courts below and the sentence imposed on him by the appellate court are challenged by the accused in this revision petition.

9. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records.

10. PW1 is the Preventive Officer who detected the offence. PW4 is another Preventive Officer who was in the excise party led by PW1. They gave evidence regarding the occurrence in detail. The fact that the independent witnesses, who were examined as PW2 and PW3, did not support the prosecution case is not a sufficient ground to disbelieve the evidence of PW1 and PW4 regarding the occurrence.

11. Ext.P10 is the chemical analysis report in respect of the sample of liquid which was sent to the laboratory for examination. It shows that the sample of liquid contained 28.26% by volume of ethyl alcohol.

12. Learned counsel for the petitioner contended that the conviction entered against the petitioner cannot be sustained for the following reasons: (1) The bulk quantity of the contraband liquid allegedly seized from the possession of the petitioner was not produced before the court and marked as material object during the trial. (2) The inventory certified by the learned Magistrate was not prepared by the authorised officer and therefore, it cannot be accepted as evidence in respect of the offence allegedly committed. (3) The sample which was sent for analysis was not drawn in the presence of the Magistrate as required under Section 53A of the Act and therefore, the chemical analysis report cannot form the basis of conviction.

13. Section 53A(1) of the Act states that, notwithstanding anything contained in the 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 specified.

14. The Stat