CHANDRASHEKHARA vs STATE OF KERALA

The revision petitioner herein challenges the conviction and sentence against him under Section 8(2) of the Kerala Abkari Act (hereinafter

referred to as ""the Act"") in S.C.No. 176 of 2011 of the Court of Session, Kasaragod. He faced prosecution on the allegation that at about 12.30

p.m. on 01.10.2006, he was found possessing 11 bottles of beer (650 ml each), and also 2.5 litres of arrack contained in 25 packets of 100 ml

capacity. The offence was detected by the Excise Inspector of the Kumbala Excise Range. He arrested the accused on the spot, and seized the

contraband articles as per a mahazar. On the basis of the arrest and seizure, a crime was registered at the Excise Range Office, and investigation

was made by another Excise Inspector. After investigation, he submitted final report in court under Section 55(a) of the Act.

The accused appeared before the learned Assistant Sessions Judge, Kasaragod, and pleaded not guilty to the charge framed against him. The

prosecution examined four witnesses in the trial court, and proved Exts.P1 to P11 documents. There was no material object to be identified during

trial because the properties had been, by the time, produced before the Assistant Excise Commissioner for necessary action.

The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C.. He did not adduce any evidence in defence.

On an appreciation of the evidence, the trial court found the accused guilty under Section 8(2) of the Act. On conviction, he was sentenced to

undergo simple imprisonment for three years, and to pay a fine of Rs.1 lakh. Aggrieved by the judgment of conviction dated 29.11.2013, the

accused approached the Court of Session, Kasaragod, with Crl.A.No. 200 of 2013. In appeal, the learned Sessions Judge, Kasaragod,

confirmed the conviction, but reduced the sentence to simple imprisonment for one year. Now the accused is before this Court in revision,

challenging the legality and propriety of the conviction and sentence.

On hearing both sides, and on a perusal of the materials, I find that there are some legal infirmities in this case, the benefit of which must go to

the accused. PW1 is the Excise Inspector who detected the offence, and PW4 is the Excise Inspector who investigated the case, and submitted

final report. The crime and occurrence report was registered by PW1 . PW2 is the Excise Guard who assisted PW1. PW3 examined as

independent witness turned hostile. PW1 has given evidence proving the seizure of something from the hands of the accused. The question is

whether the liquid seized by PW1 as per the mahazar is arrack or some other kind of liquor. The evidence given by PW1 is that he had taken

samples from the contraband articles, and the samples were produced in court. The remaining quantity of contraband articles was produced before

the Assistant Excise Commissioner for necessary action under Section 53(A) of the Act. Ext.P9 is the inventory prepared under Section 53(A) of

the Act. This is seen prepared by the Excise Inspector. Of course, it contains the seal and signature of the Assistant Commissioner of Excise. But

the evidence given by PW1 shows that this inventory was in fact prepared by him, and his signature therein shows the date 01.10.2006.

The law under Section 53(A) of the Act is that when any contraband article is produced before the authorised officer appointed under Section

67B of the Act, he shall prepare an inventory of the articles, take photographs of the articles, and get the inventory and photograph certified by the

Magistrate having jurisdiction. The Ext.P9 inventory shows that it was certified by the Magistrate on 05.05.2007. An inventory prepared under

Section 53(A) of the Act must be verified and certified by the Magistrate without any delay. It is not seen explained how the inventory prepared on

01.10.2006 happened to be certified only on 05.05.2007. This creates suspicion regarding the Ext.P9 certificate.

Section 53(A) of the Act provides that the inventory prepared by the authorised officer according to law, and got certified by the Magistrate is

admissible in evidence even without examining the authorized officer. The inventory will get such sanctity only if it is an inventory prepared by the

authorized officer, after verifying and seeing the articles personally, and certified by the Magistrate without delay. There is no explanation, why

PW1 prepared the inventory on the date of detection itself. When the inventory is doubtful, or when the court requires some clarification regarding

the inventory, it cannot be admitted in evidence without examining the person who prepared it. The evidence of PW1 shows that it was prepared

by him on the date of detection itself. This makes the inventory suspicious and unacceptable. The object of inventory is to prove the identity of the

article seized from the possession of the accused. When the inventory is defective and inadmissible, the resultant finding will be that there is nothing

to identify the property as the property seized from the hands of the accused. As regards inventory, there is yet another aspect that the

photographs seen certified by the Magistrate shows only four bottles of beer, whereas, the prosecution case is that 11 bottles of beer were seized

from the accused. This difference is not seen explained by anybody. This also creates doubt about the prosecution case.

The forwarding note does not contain a clear specimen of the seal affixed on the sample. PW1 has not given evidence as to what seal was in

fact affixed by him. Yet another curious aspect is that the name of the Excise Guard deputed to take the sample to the laboratory is seen scored off

in the forwarding note. The name Ummerkutty is seen scored off, and the very same name is later inserted. The name Sabu K. is also there in the

forwarding note. This is a crime of Kumbala Excise Range. But the writings ""Kumbala Excise Range"" are seen scored off in the forwarding note. If

so, it is not known, to which Excise Range this crime relates, or the forwarding note relates. This is also a suspicious circumstance in favour of the

accused. As discussed above, I find that there are serious legal infirmities in this case creating serious doubt about the truth of the prosecution case.

The benefit of these infirmities and doubts must go to the accused.

In the result, this revision petition is allowed. The revision petitioner is found not guilty of the offence under Section 8(2) of the Act, and

accordingly, he is acquitted of the said offence in revision. The conviction and sentence against the revision petitioner in S.C. No.176 of 2011 of

the trial court, confirmed in appeal by the Court of Session, Kasaragod, in Crl.A.No. 200 of 2013, will stand set aside. The amount, if any,

deposited by the revision petitioner in the appellate court as a condition for suspension of sentence will be released to him.