ANDIKUTTY v. STATE OF KERALA

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with the sample seized and the documents prepared were produced before Kunnamanagalam Police Station, and a case was registered against the revision petitioner. PW8 investigated the case and laid charge sheet against the revision petitioner under Sections 55(a) and 55(g) of the Abkari Act.

3. On appearance of revision petitioner before the trial court, charge was framed under Sections 55(a) and 55(g) of the Abkari Act, read over and explained, to which, he pleaded not guilty and claimed to be tried. Thereupon, prosecution examined PWs 1 to 8, marked Exts.P1 to P8 and identified MO1, to prove its case.

4. On closure of the prosecution evidence, the revision petitioner was questioned under Section 313 Cr.PC and he denied all the incriminating circumstances brought on record, but no defence evidence was adduced.

5. On hearing the rival contentions from either side, and on analysing the facts and evidence, the trial court found the revision petitioner guilty under Section 8(2) of the Abkari Act, and he was convicted and sentenced to undergo rigorous imprisonment for one year and fine of Rs.1,00,000/- and in

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default to undergo rigorous imprisonment for a further period of three months. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal No.560 of 2009, and the appellate court dismissed the appeal, finding that there was no reason for interference, against which he has preferred this revision petition.

6. Now this Court is called upon to verify the legality, propriety and correctness of the conviction and sentence imposed on the revision petitioner, by the trial court as well as the appellate court.

7. Heard learned counsel for the revision petitioner and learned Public Prosecutor.

8. Learned counsel for the revision petitioner submitted that, the conviction and sentence of the revision petitioner will not stand in the eye of law, as there were sufficient grounds to disbelieve the prosecution case. First of all, he pointed out that, no seizure mahazar was prepared in this case, which is a primary document to prove the seizure. Seizure mahazar is to be prepared at the time of detection itself, at the spot of detection. Obviously, no reason whatsoever has been shown by the

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prosecution, as to why the seizure mahazar was not prepared at the scene of occurrence, which should have been the most important document to substantiate their case. The prosecution was bound to establish the link evidence that the contraband was seized from the possession of the revision petitioner, and the sample which reached the chemical examiner's lab was the very same sample taken from the contraband, which was found possessed by the revision petitioner. Though Ext.P2 search list, showing the list of articles seized at the spot, is prepared, it cannot be a substitute for the seizure mahazar, to be prepared at the scene, with the signature of the attesting witnesses and of the officials who were all present at the time of detection. Moreover, the specimen impression of the seal affixed on the sample bottle also should find a place in the seizure mahazar, describing its nature, in order to prove the genuineness of the sample, as well as the transparency of the procedure. No n preparation of the seizure mahazar at the place of occurrence, is fatal to the prosecution. On 03.09.2005, i.e on the next day of occurrence, a scene mahazar was seen prepared by Sub Inspector of Police, though he was not made a witness in this case. Scene mahazar prepared on the next day of detection

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cannot be a substitute for the seizure mahazar which should have been prepared at the time of detection at the place of occurrence itself.

9. PWs 3 and 4, the independent witnesses, turned hostile to the prosecution. In Ext.P5 forwarding note, specimen impression of the Station House Officer is seen affixed. That forwarding note is seen dated 14.10.2005. There is nothing to suggest that the specimen impression of the seal affixed in the forwarding note was the seal used to seal the sample bottles at the place of occurrence on 02.09.2005.

10. Learned counsel for the revision petitioner submitted that, in the case on hand, there is violation of Section 53A of the Abkari Act. According to him, the wash allegedly seized from the house premises of the revision petitioner in four plastic pots were destroyed by PW1 after taking samples. No inventory was prepared and the procedure prescribed under Section 53A for destruction of the contraband was not followed. Section 53A was introduced in the Abkari Act by Act 1 of 2003 with effect from 03.09.2002. The incident in this case occurred on 02.09.2005. So, Section 53A of the Abkari Act was very much

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applicable in this case for the disposal of the contraband allegedly seized from the possession of the revision petitioner.

11. In Appu V. State of Kerala [2016 (5) KHC 310], this Court held that, when Section 53A of the Act prescribes the manner in which seized liquor, intoxicated drug or article are to be disposed of, it has to be complied with in its letter and spirit. In paragraph 6 of the judgment, it is stated thus:-

"......A careful scanning of the provisions under Section 53A of the Act would reveal that the procedures contemplated under Section 53A(2) of the Act have to be followed before the destruction of the articles invoking the power under Section 53A. Evidently, it is only the authorised officer who is competent to order for the destruction of the seized articles in terms of the provisions under Section 53A going by provisions under Section 67B of the Act. A perusal of sub-section (2) of Section 53-A would reveal that the authorised officer shall have to prepare an inventory of such liquor, intoxicating drug or article containing such details relating to their description, quality, quantity, mode of packing, marks, numbers of such other identifying particulars of the liquor, intoxicating drug or article or the packing containers in which they were kept, place of origin and other particulars, as the authorised officer may consider relevant to identify the liquor, intoxicating drug or article and then make an application to any Magistrate for the purpose of certifying the correctness of the inventory so prepared. Clause (b) of Section 53A(2) provides that in the presence of such Magistrate photographs of such liquor, intoxicating drug or article and certifying such photographs have to be done. Going by clause (c) of Section 53-A (2) in the presence of such Magistrate representative samples of such liquor, intoxicating drug or article could be drawn after certifying correctness of any list of sample so drawn. Sub-section (5) of Section 53A also assumes relevance. Going by the same, an inventory,

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the photographs of liquor, intoxicating drug or article or any list of samples drawn in terms of sub-sections (2) and

(4) and certified by the Magistrate has to be treated as primary evidence by a court while trying an offence under the Act. The question whether the procedures thus prescribed under Section 53A are mandatory or not was considered by this Court in Damodaran's case (supra). This Court held that an excise official or a police officer who detects offences under the provisions of Abkari Act is under the bounden duty to follow these provisions of the Act and that the said procedures prescribed under Section 53-A are mandatory in nature. I may hasten to add that in a case where the procedures which were to be followed in terms of the decision in Ravi's case (supra) were scrupulously followed or in other words, the factum regarding the seizure of the article under Section 34 of the Act was reported to the court forthwith and the seized articles were produced before the court without any delay and delay, if any, was explained the failure to follow the procedures under Section 53A would not be fatal to the prosecution case. But, a case where such articles were destroyed even without following the procedures to be followed by virtue of Ravi's case (supra) the failure to follow the procedures prescribed under Section 53-A would be fatal to the prosecution. In a case where the prosecution asserts that seizure was effected from a contraband liquor or a material which was used for preparing illicit liquor in huge quantity and the said huge quantity were destroyed without following the procedures and in the absence of any evidence to show that a sample was taken from the residue which were destroyed, it would amount to deprivation of the statutory safeguard which is embodied in Section 53-A of the Act. Even if the detecting officer or the authorised officer is of the view that the quantity of such liquor were to be destroyed and at the same time, the person who was found in possession of such materials was to be prosecuted, for a successful prosecution the procedures under Section 53-A are to be followed and in such circumstances, in terms of sub- section (5) of Section 53-A despite the destruction of such articles the inventory, the photographs along with the certificate by the Magistrate would act as a primary evidence in respect of such offence. When that be the position, the failure of following the procedures under Section 53A scrupulously would definitely vitiate the very prosecution itself...".

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12. This Court in Damodaran.C V. Station House Officer and another [2007 (4) KHC 936] reiterated the necessity to follow the modalities prescribed under Section 53A for disposal of the seized liquor, intoxicating drugs etc., and if there is violation of Section 53A, the entire prosecution case will vitiate on that ground itself.

13. In the case on hand, the procedure prescribed under Section 53A of the Abkari Act was not followed for destroying the wash allegedly seized from the possession of the revision petitioner. The prosecution case was that, 30 litres of wash was found in four pots kept behind the house of the revision petitioner. After destroying the wash, those pots also were not seized or produced before the court to substantiate their case. Moreover, PW1 is not an empowered officer competent to destroy the contraband seized, as envisaged under Section 67B of the Abkari Act.

14. These crucial aspects were not taken note of by the trial court or the appellate court. Since these material aspects are sufficient to vitiate the trial, the conviction and sentence imposed on the revision petitioner by the trial court as well as

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the appellate court, are liable to be set aside. In the result, the revision petition is allowed, setting aside the impugned judgments of conviction and sentence, and the revision petitioner is found not guilty of the offence punishable under Section 8(2) of the Abkari Act and he is acquitted thereunder. His bail bond is cancelled and he is set at liberty forthwith.

The revision petition accordingly stands allowed.

Sd/-

SOPHY THOMAS

JUDGE

SJ