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2023 Supreme(Online)(KER) 10017
HIGH COURT OF KERALA
SOPHY THOMAS, J
K.V.SURESH – Appellant
Versus
STATE OF KERALA – Respondent
Crl.Rev.Pet 685 2016
RESHMA E., RESHMA E.
Conviction under the Abkari Act cannot stand when there are significant procedural irregularities and delays in investigation, undermining the integrity of the prosecution's case.
Headnote:
Abkari - Possession of Contraband - Abkari Act - Sections 55(a), 8(1), 8(2), 50, 53A, 67B - The court found procedural irregularities and delays in the prosecution process, undermining the legality of the conviction under the Abkari Act, ultimately leading to the acquittal of the accused.
Fact of the Case:
The accused was arrested for possessing 150 packets of arrack, but the conviction was challenged on grounds of improper inventory preparation and unexplained delays in the investigation.
Finding of the Court:
The court noted significant procedural flaws in the preparation of the inventory and delays in the investigation that warranted the overturning of the conviction.
Issues: Whether the procedural irregularities in the preparation of the inventory and the delay in the investigation affected the legality of the conviction under the Abkari Act.
Ratio Decidendi: The court determined that the improper certification of the inventory and delays in investigation were fatal to the prosecution case, leading to a lack of sufficient evidence for conviction.
Final Decision: The revision petition is allowed, and the accused is acquitted.
ORDER
This revision is at the instance of the accused in S.C. No.554 of 2012 on the file of Assistant Sessions Judge, Kasaragod, assailing the judgment in Crl.Appeal No.65 of 2015 on the file of Additional Sessions Judge-III, Kasaragod, which upheld his conviction under Section 55 (a) of the Abkari Act , though the sentence was modified and reduced to certain extent.
2. The prosecution case is that, on 17.09.2008 at about 4.15 p.m., the revision petitioner was found in possession of 150 packets of arrack containing 100 ml. each in a white plastic sack at Nayikkappu Junction. PW1, the Excise Circle Inspector, Kasaragod, and excise party while on patrol duty, detected the offence. The revision petitioner was arrested and the contraband was seized.
3. After completing the legal formalities, the revision petitioner along with the records and the contraband seized were produced before the Excise Range OfÏce, where crime and occurrence report was registered against him. PW6, Excise Inspector investigated the case and filed charge sheet against the revision petitioner under Sections 8 (1) and 8(2) of the Abkari Act .
4. On appearance of the accused before the trial court, charge was framed under Section 8 (2) of the Abkari Act , read over and explained, to which, he pleaded not guilty and claimed to be tried. PWs.1 to 6 were examined and Exts.P1 to P11 were marked from the side of prosecution, to prove its case.
5. On closure of prosecution evidence, the revision petitioner was questioned under Section 313 of Cr.P.C., and he denied all the incriminating circumstances brought on record, but no defence evidence was adduced.
6. On appreciating the facts and evidence and on hearing the rival contentions from either side, the trial court found the revision petitioner guilty under Section 55 (a) of the Abkari Act , and he was sentenced to undergo rigorous imprisonment for two years and fine of Rs.1 lakh, with a default sentence of simple imprisonment for a further period of two months.
7. Aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner preferred Crl.Appeal No.65 of 2015. The appellate court, on re-appreciating the facts and evidence, upheld the conviction under Section 55 (a) of the Abkari Act , but the sentence was modified to simple imprisonment for one year and fine of Rs.1 lakh with a default sentence of simple imprisonment for a further period of three months, against which, he has preferred this revision.
8. Now this Court is called upon to verify the legality, propriety and correctness of the impugned judgments of conviction and sentence imposed on the revision petitioner, by the courts below.
9. Heard learned counsel for the revision petitioner and learned Public Prosecutor.
10. Learned counsel for the revision petitioner is assailing the conviction and sentence pointing out some material irregularities, which, according to her, are sufÏcient to vitiate the trial. First of all, she would say that, there was no independent evidence corroborating the prosecution case, as PWs.2 and 5, the independent witnesses, turned hostile to the prosecution. She is assailing Ext.P9 inventory on the ground that there was violation of Section 53A of the Abkari Act . According to her, it was prepared by PW3, the Preventive OfÏcer who was allegedly holding charge of Excise Inspector. Ext.P9 is signed by PW3 on 18.09.2008. Though that document is signed by the Assistant Excise Commissioner, who is an authorized ofÏcer under Section 67B of the , he has not put the date on which he signed the inventory. Since the dated signature of PW3 is seen in Ext.P9 inventory, in all probability, that document might have been prepared by PW3, who is not an authorized ofÏcer.
11. Learned counsel for the revision petitioner is relying on the decision Kusuma v. State of Kerala [2022 KHC 556] , wherein this Court held that, when the inventory was marked and prepared by the Excise Inspector, who is not an authorized ofÏcer, it vi
