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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
Babu @ Vishwanathan S/o Late Keshavan - Appellant
Versus
State of Kerala - Respondent
Crl. Appeal No. 28 of 2014
Decided On : 02-06-2025
(A) Kerala Abkari Act - Section 8(2) and Section 53A - Conviction for possession of contraband liquor - The trial court found the accused guilty based on evidence presented, but the appeal raised issues regarding the preparation and certification of the inventory of seized items, which was not in compliance with statutory requirements. (Paras 7, 15, 16)
(B) Evidence - Primary evidence - The court emphasized that the inventory must be prepared and certified in accordance with the law, and failure to do so undermines the prosecution's case. (Paras 12, 15)
Facts of the case:
The accused was found in possession of 50 packets of arrack during a patrol by the Excise Inspector. The trial court convicted him based on the evidence presented, including witness testimonies and inventory documentation.
Findings of Court:
The court found that the inventory was not properly prepared and certified, leading to the conclusion that the prosecution failed to prove its case beyond reasonable doubt.
Issues: The main issues included whether the inventory was prepared correctly under Section 53A and whether the trial court erred in its conviction.
Ratio Decidendi: The court ruled that the failure to comply with the statutory requirements for inventory preparation and certification rendered the evidence inadmissible, thus necessitating the acquittal of the accused.
Result: Appeal allowed; conviction and sentence set aside.
Key Points:- The court found that the inventory was not properly prepared and certified, undermining the prosecution's case. (!) (!) - The authorised officer’s preparation of the inventory and the Magistrate’s certification are essential; failure to properly prepare/certify inventory affects primary evidence and can lead to acquittal. (!) (!) (!) (!) (!) (!) - Balakrishna Rai and Abhilash lineage cited indicate certification by the Magistrate must carefully verify contents; improper certification cannot be treated as primary evidence. (!) (!) - As a result, the conviction under Section 8(2) was set aside and the accused acquitted and set at liberty. (!) (!) - The extent of reliance on Ext.P9 inventory and whether it satisfies Section 53A(2) is central to sustaining the prosecution. (!) (!) (!)
ORDER :
1. 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, 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 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 inBalakrishna Rai v. State of Kerala, 2020 (3) KHC 286 : 2020 (1) KLD 716 : 2020 (3) KLT 727 : 2020 (3) KLJ 240 : 2020 KER 20317 andAbhilash v. State of Kerala, 2021 KHC 2446 : 2021 KHC OnLine 2446 : 2021 Cri. L.J. NOC 42 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 min
Failure to comply with statutory requirements for inventory preparation and certification under the Kerala Abkari Act undermines the prosecution's case, leading to acquittal.
Failure to comply with statutory requirements for inventory preparation and certification under the Kerala Abkari Act undermines the prosecution's case, leading to acquittal.
Defects in evidence documentation undermine a conviction under the Abkari Act, justifying acquittal.
The failure to strictly comply with the mandatory procedure under Section 53A of the Abkari Act, particularly the lack of Magisterial certification for the inventory of destroyed contraband, renders ....
The prosecution's failure to comply with mandatory statutory provisions regarding inventory preparation and certification leads to the acquittal of the accused.
The court affirmed that the Preventive Officer's testimony could substantiate a conviction under the Kerala Abkari Act, despite procedural irregularities.
Under Sec.53A(i), in order to ensure that Court can safely base their conviction, inventory should be prepared strictly in accordance with requirements of Sec.53A(2).
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.
Procedural defects in the collection and handling of evidence undermine the prosecution's case, necessitating acquittal when the chain of custody is not established.
Akbari Act - Non-compliance of mandatory requirements to be complied with at the time of arrest is fatal to the prosecution as the seizure of the contraband has no existence without proving the factu....
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