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2022 Supreme(Online)(KER) 13034
HIGH COURT OF KERALA
A. BADHARUDEEN, J
RAJU – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 361 2015
Only authorized officers may prepare inventory under the Kerala Abkari Act, and evidence must be handled in a tamper-proof manner to uphold convictions.
Headnote:
Conviction - Criminal Law - Kerala Abkari Act - Sections 8(1), 67B, 53A(2) - The court found that the absence of an authorized officer in preparing the inventory and the failure to demonstrate tamper-proof custody of the contraband led to the reversal of the conviction.
Fact of the Case:
The accused was apprehended in possession of contraband arrack, leading to his conviction under the Kerala Abkari Act. The prosecution's case hinged on evidence from officers involved, which raised procedural issues regarding the authorization and handling of the evidence collected.
Finding of the Court:
The court determined that the inventory was improperly prepared by an officer lacking the requisite authority under Section 67B, and there were no convincing details showing that the contraband was kept in a tamper-proof condition until lab examination.
Issues: Whether the accused's conviction under the Kerala Abkari Act was valid given the procedural irregularities concerning the preparation of the inventory and the handling of evidence.
Ratio Decidendi: The court emphasized that only an authorized officer is permitted to prepare an inventory, and any failure in maintaining the integrity of evidence undermines the prosecution's case, warranting acquittal.
Final Decision: The appeal was allowed, and the conviction and sentence imposed were set aside.
J U D G M E N T
The sole accused in S.C.No.959/2009 on the file of the Sessions Court, Thrissur, being aggrieved by the conviction and sentence imposed against him, as per judgment dated 12.01.2015, has preferred this appeal under Section 374 of the Code of Criminal Procedure. The respondent herein is the State of Kerala represented by the Public Prosecutor.
2. Heard the learned counsel for the appellant as well as the learned Public Prosecutor.
3. Shown off unnecessary details, the allegation of the prosecution is that on 16.10.2007 at about 1.30 pm while the Excise Preventive Officer attached to Excise Circle Office, Irinjalakuda and his party were on patrol duty, on suspicion, when the accused was intercepted, it was found that he had possessed 2 litres of arrack in a can against the prohibitions contained in the Kerala Abkari Act . The accused was arrested and contraband taken into custody. Crime was registered alleging commission of offence under Section 8 (1) and 8(2) of the .
4. On investigation, final report filed before the Jurisdictional Magistrate and, in turn, the case was committed to the Court of Sessions for trial and disposal. The 3rd Additional Sessions Judge tried the matter after completing pre-trial formalities and recorded evidence of PWs 1 to 3 and Exts.P1 to P9 apart from marking MO1 on the side of the prosecution.
5. On closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C and his explanation to the incriminating circumstances found in evidence got recorded. When he was given opportunity to adduce evidence, DW1 was examined and Ext.X1 got marked.
6. On appreciation of the evidence, the learned Sessions convicted the accused under Section 8 (1) of the Kerala Abkari Act and sentenced to undergo simple imprisonment for a period of 6 months and to pay fine of Rs.1 lakh. The above conviction and sentence are under challenge in this appeal.
7. The learned counsel for the appellant argued that in this case the detecting officer is PW1, who is the Excise Inspector and he himself prepared inventory in violation of the mandate of Section 67B of the Kerala Abkari Act .
8. According to the learned counsel for the appellant, as per Section 67B of the Kerala Abkari Act , the authorised officer must be an officer authorised by the Government by notification in the Gazette and the said officer is an officer not below the rank of an Assistant Excise Commissioner. In support of this argument, decision of this Court reported in [ 2016 (4) KLT 727 ],Chandran v.
State is placed by the learned counsel for the appellant.
9. The learned Public Prosecutor also not disputed the legal position and he also submitted that the legal position as argued by the learned counsel for the appellant is not changed so far.
10. Going by the decision highlighted by the learned counsel for the appellant, subsequently followed in the decision reported in [ 2020 (3) KLT 727 ],Balakrishna Rai v. State of Kerala, the legal position is emphatically clear that Section 53A (2) of the Kerala Abkari Act mandates that the inventory shall be prepared by the authorised officer. Section 67B provides that the authorised officer must be an officer authorised by the Government by notification in the Gazette and the said officer is an officer not below the rank of Assistant Excise Commissioner.
10. SRO 671/75 provides that Assistant Commissioners in-
charge of Excise Divisions are authorised officers under sub- section (1) of Section 67B of Abkari Act for the purpose of Section
67B within their respective jurisdiction.
11. In this case the independent witness, PW2, examined by the prosecution to prove the recovery of contraband from the accused, turned hostile to the prosecution and he did not support the prosecution in relation to the recovery. However, he admitted his signature in Ext.P2 recovery mahazar. PW3 examined in this case is the Excise Inspector, Chalakkudi and his evidence is confined to the registration of crime
