JUDGMENT

Dated this the 23rd day of February 2021 Appellants are the accused in S.C.No.304/2006, on the file of the IVth Additional Sessions Judge (Adhoc-II), Thodupuzha. The above case is charge sheeted by the Excise Inspector, Adimaly against the appellants alleging the offence punishable under Sections 55(g) and 8(1)

and (2) of the Abkari Act.

2. The prosecution case is that on 22.8.2004, at

3.00 pm, the accused were found distilling arrack near Ambazhachal Kambiline road to Niravath estate. PW3-the Excise Inspector detected the offence. He arrested the accused, seized the utensils used for distillation of arrack by the accused as well as distilled arrack and wash. Hence, it is alleged that the accused committed the offences.

3. To substantiate the case, the prosecution examined PW1 to PW4. DW1 and DW2 are also examined on side of the prosecution. MO1 to MO9 are the material objects. Exts.P1 to P6 are also marked on the side of the prosecution.

4. After going through the evidence and documents, the trial Court found that the accused committed the offence punishable under Section 55(b) and (g) of the Abkari Act. The accused were sentenced to undergo Rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- each. In default of payment of fine, the accused are directed to undergo rigorous imprisonment for three months for offence under Section 55(b) of the Abkari Act. No separate sentence is passed for offence under Section 55(g) of the Abkari Act. Aggrieved by the conviction and sentence, this Criminal Appeal is filed by the appellants.

5. Heard the learned counsel for the appellants and the learned Public Prosecutor.

6. The counsel for the appellants submitted that there is total violation of Section 53A of the Abkari Act and the accused are entitled to benefit of doubt on that simple reason. The counsel takes through Ext.P1 seizure Mahazar. The counsel submitted that no inventory is prepared by the officer concerned. The wash seized from the possession of the accused was destroyed from the spot itself without preparing an inventory. The counsel relied on decision in Appu v. State of Kerala [2016(5)KHC 310] and Damodaran.C. v Station House Officer and Another [2007(4)KHC 936] .

7. The learned Public Prosecutor submitted that, based on the oral and documentary evidence, the offence against the accused is proved, and there is nothing to interfere with the conviction and sentence imposed in this case. But the learned Public Prosecutor submitted that there is no inventory prepared.

8. The point to be decided is whether the accused committed the offence under Section 55(b) and (g) of the Abkari Act.

9. I perused Ext.P1 seizure mahazar. Perusal of Ext.P1 mahazar its clear that the wash seized from the spot was destroyed without preparing an inventory. This court in Appu v. State of Kerala [2016(5)KHC 310]

observed like this:-

“6. Evidently, in this case, a specific contention was taken before the trial court as also before this Court that the articles seized under Section 34 of the Act viz., the residue of wash were destroyed without following the procedures under Section 53A of the Abkari Act. A perusal of the impugned judgment would reveal that the said contention was considered by the trial court and it was not treated as a serious lapse owing to the fact that the counsel for the accused had failed to establish that it is a mandatory procedure. In such circumstances, the question is whether the procedures prescribed under Section 53A of the Abkari Act are mandatory or directory in nature? For consideration of the said issue it is appropriate to refer to the said provision and it 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 notific