JUDGMENT

Dated this the 9th day of March, 2021 The accused in Sessions case No. 995 of 2004, has filed this appeal, being aggrieved by the judgment dated 24.3.2008 of the Additional Sessions Judge(Adhoc II), Kasaragode, whereby he has been found guilty of offence under Section 55(a) of the Abkari Act and has been sentenced to undergo Simple imprisonment for one year and pay a fine of Rs.1,00,000/- and on failure to pay the fine, to undergo simple imprisonment for a further period of 3 months.

2. The prosecution case is that on 13.01.2004 at 4.30 P.M the accused was found in possession of twenty five packets of Karnataka made arrack, each having a capacity of 100 ml, near the borewell situated on the side of residential building bearing No.V/178 of Enmakaje Panchayat. The offence has been detected by the Preventive Officer, Badiadka Excise Range. The case was taken on file before the J.F.C.M. Court, Nadapuram as C.P.No. 270/2004 and thereafter committed to the Sessions Court, Kasaragode. The Sessions Court took the case on file as S.C.No.995/2004 and made it over to the Additional Sessions Judge(Adhoc II), Kasaragode for trial and disposal. PW1 to PW9 were examined on the side of the prosecution and Exhibits P1 to P5 were marked. The Sessions Court on the basis of the evidence on record found the accused guilty and imposed the sentenced aforesaid.

3. Heard Sri.T.G.Rajendran, learned counsel for the appellant and Smt.Sylaja, learned Public Prosecutor for the respondent State.

4. The main contention advanced by the counsel for the appellant is that the procedure prescribed under Section 53A of the Abkari Act has not been followed by the prosecution while disposing of the thondy articles and that itself is sufficient to acquit the appellant. Ext.P2 is the Mahazar prepared on 13.1.2004, at the time of detection of the offence by the Preventive Officer. Ext.P3 is the scene mahazar prepared by the Excise Inspector, Badiadka Range eight months later on 14.9.2004. Ext.P4 purports to be the Inventory of the Contraband prepared by the Assistant Excise Commissioner on 20.1.2004. It would appear that the inventory was prepared by the Excise Inspector on 14.01.2004 and that thereafter, the Assistant Excise Commissioner countersigned it on 20.1.2004. It is also seen that what is shown as inventory is a sealed blue coloured plastic sack.

There is also a request placed by the Assistant Excise Commissioner on 20.1.2004, requesting the Magistrate to certify the correctness of the Thondy articles, to certify the photograph of thondy articles, to allow to draw sample of the arrack and to certify them and to issue a certificate regarding compliance with Section 53A for the purpose of disposing the contraband. However, there is nothing available in evidence to show that the Magistrate had certified the thondy articles or the photographs or allowed to draw sample and certified the same. Ext.P8 marked in the case is the Forwarding note. It is seen dated and signed by the forwarding officer on 13.1.2004. However, the date on which the Magistrate has initialled it appears to be much later on 25.2.2004. The delay in forwarding the sample is not explained and nobody has been examined to show the safe custody of the sample.

5. A reading of Section 53A would show that on seizure of the liquor, the authorized officer is duty bound to prepare an inventory showing the details of the seized articles and to make an application to any Magistrate having jurisdiction of the area, for the purpose of certifying the correctness of the inventory so prepared, or for the purpose of taking, in the presence of such Magistrate, photographs of such liquor etc. and certifying the photographs as such or for the purpose of allowing to draw representative samples of the seized articles in the presence of the Magistrate and certifying the correctness of the list of samples. It is the contention of the appellant that none of the above procedures have been followed in the instant case