Back
2023 Supreme(Online)(KER) 1305
HIGH COURT OF KERALA
VIJU ABRAHAM, J
V.T.NARAYANI – Appellant
Versus
STATE OF KERALA – Respondent
Crl.Rev.Pet 2111/2012
SRI.SURESH KUMAR KODOTH
Strict compliance with procedural provisions of the Kerala Abkari Act is essential for sustaining a conviction; failure to do so leads to acquittal.
Headnote:
Abkari - Possession of Liquor - Kerala Abkari Act - Sections 8(1), 8(2), 53A - The court found that the prosecution failed to strictly comply with statutory formalities required under the Kerala Abkari Act, particularly in inventory preparation, leading to a conclusion of no credible evidence against the accused.
Fact of the Case:
The accused was found with contraband liquor and was convicted by the trial court. The accused argued against the violation of the Abkari Act provisions concerning inventory preparation and an undue delay in investigation.
Issues: Whether the prosecution complied with the requirements of the Kerala Abkari Act in preparing the inventory and if the delay in investigation was fatal to the case.
Ratio Decidendi: The court concluded that violations of procedural safeguards in the Abkari Act, particularly in the preparation and verification of the inventory, rendered the prosecution's case unsustainable.
Final Decision: The revision petition is allowed, the conviction and sentence are set aside, and the accused is acquitted.
ORDER
The revision petitioner herein is the accused in S.C. No.
432 of 2007 on the files of Assistant Sessions Judge, Hosdurg, alleging the commission of offences punishable under Sections 8 (1) & (2) of the Kerala Abkari Act .
2. The prosecution allegation in short is that, on
23.12.2005 at 9.30 hours, the revision petitioner/accused was found in possession of 4 litres of arrack contained in a jerry can at the public road Vannaravayal-Udayamangalam and thereby committed the alleged offences.
3. The prosecution in support of their case examined PWs 1 to 6 and Exts P1 to P12 were marked. The trial Court found the accused guilty and convicted her to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of one month.
4. Aggrieved by the conviction and sentence imposed by the trial Court, an appeal was preferred as Crl.Appeal No.359 of 2010 before the Sessions Court, Kasaragaod, which also ended up in dismissal whereby the conviction and sentence imposed by the trial Court was upheld.
5. The learned counsel for the revision petitioner raised the following contentions: The first contention is regarding the violation of Section 53A of the Abkari Act. The contention of the revision petitioner is that Ext.P8 inventory report is prepared by PW5 - Excise Inspector, though it is seen counter signed by the Assistant Excise Commissioner. The revision petitioner relying on the evidence of PW5 would submit that as directed by the Assistant Excise Commissioner, he has prepared the inventory report. The revision petitioner took me to Ext.P8 inventory prepared, which contained signature of the Assistant Excise Commissioner and also the signature of the Excise Inspector- PW5 and signature of the Excise Inspector contains the date 23.12.2005, which is the date of occurrence, whereas the signature of the Assistant Excise Commissioner does not bear any date. In respect of the said contention, the revision petitioner relies on the judgment of this Court inK. Umesh v. State of Kerala [ 2023 (1) KLT 7 ] and also the judgment of this Court inBalakrishna Rai v. State of Kerala [2020 (3) KLT 727]. Per contra, the contention of the learned Public Prosecutor is that only what has been stated by PW5 is that he has prepared the inventory as directed by the Assistant Excise Commissioner. He also relies on the judgment inBalakrishna Rai's case cited(Supra), specifically to paragraph 26 of the judgment, in which it is stated that it is not necessary that the Assistant Excise Commissioner, the authorised officer himself 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 and that he shall not simply adopt the inventory prepared by the detecting officer and mechanically sign it and submit it before the learned Magistrate for certification. The revision petitioner further submits that there is an inordinate delay in completing the investigation. The date of occurrence was on 23.12.2005 and the chemical analysis report was ready on 20.06.2006, in spite of the same, the complaint was filed only on 19.02.2007. The evidence of PW6 clearly shows that the investigation was started 2 years after the alleged occurrence.
6. Though it is true that the scope of interference by this court exercising revisional jurisdiction is limited, it does not preclude this court from examining whether there is strict compliance with the statutory formalities mandated as per the Abkari Act. This court inBaburaj v. State of Kerala[ 2021 (6) KLT 416 ], has held that given the stringent nature of the provisions of the Act and the harsh sentence provided, strict compliance of the statutory formalities specified in the Act is necessary. The presumption of official acts to have been performed regularly and properly as provided in Section 114 (e) of the E
