The mandatory requirements under Section 53A of the Abkari Act for disposal of seized articles and the certified inventory list as the primary evidence of the offence.

JUDGMENT :

The accused in S.C.No.25/2006 on the file of the Additional Sessions Court (Adhoc II), Thodupuzha has filed this appeal, being aggrieved by judgment dated 24.05.2007, whereby he has been found guilty of offence punishable under Section 55(g) of the Abkari Act and has been sentenced to undergo rigorous imprisonment for 2 years and fine of Rs.1,00,000/-and in default of payment of fine, to undergo rigorous imprisonment for a further period of 3 months.

2. According to the prosecution, on 29.10.2003 at about 7.00 a.m., the accused was found in a property alleged to be his own, situated in Pazhampillichal Kampi line Kara in Mannamkandam Village, in possession of 100 litres of wash and necessary utensils for distillation of arrack. The offence was detected by the Excise Inspector, Adimaly, who has been examined as PW4. The detecting officer seized the contraband articles, arrested the accused and registered a crime as Crime No.27/2003. After completion of investigation, final charge was laid before the Judicial First Class Magistrate Court, Adimaly and the learned Magistrate committed the case to the Court of Sessions, Thodupuzha. The case was taken on file in the Court of Sessions, Thodupuzha and was made over to the Additional Sessions Judge (Adhoc II) Thodupuzha for trial. The case was numbered as S.C.No.25/2006.

3. During the trial, the prosecution examined 4 witnesses and marked Exts.P1 to P9 and material objects 1 to 3. The accused, during Section 313 Cr.P.C. Questioning, stated that on 29.10.2003, the Excise party trespassed into his house and conducted a search and that they did not get any contraband articles from his house. It is further stated that at about 8.00 a.m., on the next day, the Excise party took the accused from his house and foisted a case against him. The Court below accepted the prosecution evidence and found the accused guilty and imposed the sentence as aforesaid. Aggrieved by the judgment of the court below and the sentence imposed on him, the accused has filed this appeal.

4. Heard Sri.Sojan Micheal, learned counsel for the appellant and Smt.Shylaja, learned Public Prosecutor on behalf of the State.

5. The learned counsel for the appellant contended that the property from which the contraband articles were seized belongs to one Kalappurackal Mathews and that admittedly the accused has only a property of an extent of 2 cents. It is his case that the Investigating Officer has not conducted any enquiry to find out whether the property from where the contraband article was taken custody of, belongs to the appellant. Even though several contentions have been advanced by the counsel for the appellant, he is entitled to succeed on the ground that the prosecution did not follow the procedure prescribed in Section 53A of the Abkari Act. Section 53A reads thus:

“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, 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 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 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