Kerala High Court
B.K.Narayanan @ Meesa Narayanan vs State Of Kerala on 21 February, 2025
Criminal Appeal No.98 of 2014
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2025:KER:15265
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 21ST DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946
CRL.A NO. 98 OF 2014
AGAINST THE JUDGMENT DATED 23.12.2013 IN SC NO.723 OF
2012 ON THE FILE OF THE COURT OF SESSION, KASARAGOD.
APPELLANT/ACCUSED:
B.K.NARAYANAN @ MEESA NARAYANAN,
AGED 61 YEARS,
S/O.KOTTAN, KARAKKUZHI, AJANUR VILLAGE,
HOSDURG TALUK, KASARAGOD DISTRICT.
BY ADVS.
SRI.T.K.VIPINDAS
SRI.K.M.MUHAMMED HUSSAIN
SRI.K.V.SREE VINAYAKAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
RTEPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
REPRESENTING BY THE EXCISE INSPECTOR,
HOSDURG EXCISE RANGE.
BY ADV.
SMT. SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
17.02.2025, THE COURT ON 21.02.2025 DELIVERED THE FOLLOWING:
Criminal Appeal No.98 of 2014
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2025:KER:15265
C.S.SUDHA, J.
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Criminal Appeal No.98 of 2014
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Dated this the 21st day of February 2025
JUDGMENT
This appeal under Section 374(2) Cr.P.C. has been filed by the appellant, the sole accused in S.C.No.723 of 2012 on the file of the Court of Session, Kasaragod challenging the judgment dated 23/12/2013 by which he has been convicted and sentenced for the offence punishable under Section 55(a) of the Kerala Abkari Act, 1 of 1077 (the Act).
2. The prosecution case is that on 28/12/2010 at about 04:30 p.m., the accused was found transporting 30 bottles of Indian Made Foreign Liquor (IMFL) having capacity of 180 ml each meant for sale in Puthuchery State alone for sale in Kerala in contravention of the provisions of the Act at a place called Karakuzhi on the eastern side of Moolakkandam-Vellikoth road, Ajanur Village, Hosdurg Taluk. Hence, the accused as per the final Criminal Appeal No.98 of 2014 3 2025:KER:15265 report/charge sheet is alleged to have committed the offence punishable under the aforementioned Section.
3. On the final report being submitted, the jurisdictional magistrate after complying with the statutory formalities, committed the case to the Court of Session, Kasaragod, which took the case on file as S.C.No.723/2012. The case was then made over to the Additional District and Sessions Judge-III, Kasaragod for trial and disposal. On appearance of the accused before the trial court, a charge under Section 55(a) of the Act was framed, read over and explained to the accused to which he pleaded not guilty.
4. On behalf of the prosecution, PW1 to PW5 were examined and Exts.P1 to P13 were marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.
5. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the Criminal Appeal No.98 of 2014 4 2025:KER:15265 impugned judgment found the accused guilty of the offence punishable under Section 55(a) of the Act and hence sentenced him to rigorous imprisonment for two years and to a fine of ₹1,00,000/- and in default to rigorous imprisonment for a period of six months. Set off under Section 428 Cr.P.C. has been allowed. Aggrieved, the accused has come up in appeal.
6. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused/appellant by the trial court are sustainable or not.
7. Heard both sides.
8. I briefly refer to the evidence on record relied on by the prosecution in support of the case. PW4, Excise Inspector, Excise Special Squad, Kasaragod deposed that on 28/12/2010 he was on patrol duty in the department jeep along with his party. By about 04:15 p.m. while they reached in front of the office of the DYFI, Karakuzhi situated by the side of Moolakkandam-Vellikoth road, they saw the accused coming from the opposite direction carrying a white plastic sack. On seeing the excise party, the Criminal Appeal No.98 of 2014 5 2025:KER:15265 accused became perplexed and made an attempt to turn back and walk away. On suspicion arising, they intercepted the accused. On opening the plastic sack in the possession of the accused, it was found to contain 30 bottles each having a capacity of 180ml with a light red coloured liquid in it. The bottles had labels on it, which read - 'Kerala Grape Brandy, 180ml, Blended and bottled by Ravikumar Distellery Ltd. Puduchary'. PW4 opened one of the bottles and tested the liquid by smelling and tasting it. He was convinced that the content was IMFL. There was no label or sticker of the Kerala State Beverages Corporation on any of the bottles. Therefore, he arrested the accused and seized the contraband articles as per Ext.P1 seizure mahazar. As all the bottles contained the same liquid, he drew a sample of 350ml in a bottle having a capacity of 375ml. The said bottle was closed, sealed and labelled and his personal seal affixed. Ext.P5 is the copy of the specimen impression of the seal, which was affixed on the sample bottle. The remaining bottles as well as the two empty bottles from which the sample was drawn was placed inside the sack which was also sealed and labelled and his personal seal affixed. The accused and Criminal Appeal No.98 of 2014 6 2025:KER:15265 witnesses had affixed their signatures on the labels. Thereafter, he entrusted the accused the contraband articles and the contemporaneous records to PW5, Preventive Officer, Excise Range Office, Kasaragod. PW4 further deposed that he had conducted the investigation in this case and on completion of investigation, submitted the charge sheet/final report before the court.
8.1. PW1, Excise Guard, Excise Special Squad, Kasaragod deposed that he was present in the team along with PW4 when the detection, search and seizure was effected. He also supports the case of PW4.
8.2. PW2 and PW3 are the independent witnesses. PW3 admitted his signature in Ext.P1 mahazar, but denied having seen the incident or stating to the police that he had seen the incident. However, PW2 even went to the extent of denying his signature in Ext.P1 mahazar and denied the witnessing of the incident.
8.3. PW5, Preventive Officer, Excise Range Office, Kasaragod deposed that on 28/12/2010 he was the officer-in-charge Criminal Appeal No.98 of 2014 7 2025:KER:15265 of the Excise Range Office, Kasaragod PW4 had handed over the accused, the contraband articles and the case records based on which he registered crime no.71/2010, that is, Ext.P10 crime and occurrence report. He prepared Ext.P11 property list and produced the contraband articles before the court as per Ext.P11. Ext.P12 is the copy of the forwarding note submitted to the court requesting the sample to be sent for chemical examination. He also prepared Ext.P13 inventory report and produced the remaining contraband articles before the Deputy Excise Commissioner, Kasaragod.
9. As pointed out by the learned counsel for the appellant/accused in Ext.P1 mahazar, the 30 bottles alleged to have been seized from the accused contained a liquid which was light red in colour. However, in Ext.P9 chemical report the analyst stated that the sample bottles contained liquid which was amber in colour.
10. Section 53A(1) of the Act says that 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, Criminal Appeal No.98 of 2014 8 2025:KER:15265 constraints of proper storage space or any other relevant consideration, by notification in the official Gazette, specify such liqour, intoxicating drug or article which shall, as soon as may be after his seizure, be disposed of by the authorised officer referred to in Section 67B, in such manner as the Government may, from time to time determine after following the procedure specified. The State Government has issued notification in S.R.O.No.740/2002 as G.O.(P) No.139/2002/TD dated 19/09/2002 in exercise of the powers conferred by Section 53A (1) of the Act. As per the notification, spirit, IMFL and arrack have been specified as liquors which may be disposed of by the authorised officers as provided in Section 53A of the Act. Section 53A(2) of the Act provides that where any such notified liqour, intoxicating drug or article has been seized under the Act, the authorised officer shall prepare an inventory of such liquor, intoxicating drug or article containing such details relating to the 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 are kept, place of origin and other particulars, as the Criminal Appeal No.98 of 2014 9 2025:KER:15265 authorised officer may consider relevant to identify the liquor, intoxicating drug or article in any proceedings under the Act and make an application to any magistrate having jurisdiction over the area where the seized liquor, intoxicating drug or articles are stored for the purpose of- (a) certifying the correctness of the inventory so prepared; (b) by taking, in the presence of such magistrate, photographs of such liquor, intoxicating drug or article and certifying such photographs as true ; or (c) allowing to draw representative samples of such liquor, intoxicating drug or article in the presence of such magistrate and certifying the correctness of any list of samples so drawn. Sub Section (5) to Section 53A of the Act says that notwithstanding anything contained in the Evidence Act or the Cr.P.C., any Court trying an offence under the Act, shall treat the inventory, the photographs of liquor, intoxicating drug or article and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.
10.1. The very purpose of the provisions contained in Section 53A of the Act is disposal of large quantity of seized Criminal Appeal No.98 of 2014 10 2025:KER:15265 contraband liquor immediately after the seizure on retaining evidence regarding its seizure. If the authorised officer and the Magistrate follow the mandate under Section 53A of the Act strictly and scrupulously, it is not necessary for the prosecution to produce the bulk quantity of seized material before the Court during the trial of the case and mark it as material object. Then the certificate issued by the Magistrate in respect of the inventory of liqour and the list of samples drawn in his presence shall be treated by the court as primary evidence of the offence. However, when the procedure under Section 53A of the Act is not adopted and strictly followed and when the bulk quantity of liquor is not produced also before the court and when no evidence is also adduced to show that the bulk quantity of liquor has been destroyed or otherwise disposed of, seizure of such liquor itself becomes a doubtful matter. The accused will be then entitled to take advantage of such doubt. (See Balakrishna Rai v. State of Kerala, 2020 (3) KHC 286).
10.2. In the instant case, the evidence of PW4 would show that out of the 30 bottles IMFL alleged to have been seized Criminal Appeal No.98 of 2014 11 2025:KER:15265 from the possession of the accused/appellant, sample was drawn from two bottles which sample was taken in a bottle having a capacity 375 ml. The sample thus taken was produced before the court as per Ext.P11 property list on the date of the occurrence itself and the sample was forwarded for chemical analysis as per Ext.P12 forwarding note. Ext.P9 is the chemical report relating to the aforesaid sample. The testimony of PW4 and PW1 and the recitals in Ext.P1 seizure mahazar would show that PW1 had put the 28 bottles of IMFL along with the two empty bottles into the white plastic bag that was being carried by the accused ; sealed the bag ; affixed label bearing his signature and also the signature of the witnesses and the accused on the bag and he produced the same before the Deputy Excise Commissioner along with Ext.P13 inventory. The Deputy Excise Commissioner submitted the inventory signed by him also before the jurisdictional magistrate concerned along with an application specifying all the purposes mentioned under Section 53A(2) of the Act. Ext.P13 inventory report apparently was not prepared by the Deputy Excise Commissioner, the authorised officer, though it was signed by him Criminal Appeal No.98 of 2014 12 2025:KER:15265 as PW5 himself has deposed that it was he who had prepared the same. PW5 admittedly was not an authorised officer under Section 67B of the Act. Therefore, he was incompetent to prepare the inventory under sub-section (2) of Section 53A of the Act. Ext.P13 was therefore prepared by an officer not authorised under the Act and hence the same cannot be acted upon as the same is patently illegal. When Ext.P13 could not have been acted upon, the entire contraband should have been produced before the trial court. However, in this case the contraband articles were not produced before the court and instead of that, the prosecution relied on Ext.P13 which is patently illegal. (See Chandran @ Chandrasekharan v. State of Kerala, 2016 (5) KHC 650).
11. The property described in Ext.P13 is a sealed and labelled white plastic sack allegedly containing 28 bottles of IMFL and two empty bottles from which the sample was drawn. The certificate of inventory by the magistrate should have been done in respect of the bottles containing IMFL. The learned magistrate has certified the inventory by affixing a seal as follows:- Criminal Appeal No.98 of 2014 13
2025:KER:15265 CERTIFICATE "Certified that this is the representative photograph sample................................................... .............................................................
taken from ........ verified in Cr.No.
71/2010
.....................of Hosdurg Range.
SHO.............
on 25-05-2011."
After affixing the aforesaid seal, the magistrate filled up the blanks in the above seal with the crime number of the case and name of the Excise range office and then signed below it. There is also a copy of certificate which reads thus -
CERTIFICATE "I certify that inventory of Thondy Articles in 71/2010 Hosdurg Excise Range is Cr.No................................................ correct. The seal is found to be intact and the photograph of Thondy Articles is taken in my presence 4.30.P.M. this day at the by the photographer at .........................on Hosdurg Excise Range Office .....................
Sd/-
Place: Hosdurg, Judicial First Class Magistarate-I, Date:25-05-2011. Hosdurg"
The photograph produced, that is Ext.P6, shows a white sack sealed and labelled. The next photograph, that is Ext.P6(a), shows the sack opened and six bottles kept outside the sack. The aforesaid certificates of the magistrate clearly indicate that he had not actually verified the particulars of bottles of liquor contained in the sealed white plastic sack which were produced before him. The Criminal Appeal No.98 of 2014 14 2025:KER:15265 certificate does not reveal whether the sack which was produced before the magistrate contained 30 bottles of IMFL. There is nothing to show that the magistrate had opened the sack which was sealed and had verified its contents. As held in Balakrishna Rai (Supra), the practice of certifying the inventory by affixing a seal and filling up the blank spaces in the seal has to be depracated.
The magistrate who certifies the inventory under the Abkari Act or the Narcotic Drugs and Psychotropic Substances Act has to bear in mind that the certificate being issued by them would be treated as primary evidence in respect of the offence during the course of the trial. Inventory shall be certified by the magistrate only after carefully verifying the correctness of the particulars of the property mentioned and described in it.
12. The 28 bottles containing the residue IMFL and the two bottles from which samples were drawn were not produced before the trial court. No evidence was adduced regarding the disposal of the said quantity of IMFL. The inventory prepared and certified under Section 53A(2) of the Act is improper and it cannot be treated as primary evidence as envisaged under sub-section (5) Criminal Appeal No.98 of 2014 15 2025:KER:15265 of Section 53A of the Act. The representative sample was not drawn in the presence of the magistrate from the liquid seized from the possession of the accused. It is true that mere non compliance of Section 53A of the Act is not fatal to the prosecution, provided there is ample and other satisfactory evidence to support the case. Here as I referred to earlier, there is inconsistency even regarding the colour of the liquid alleged to have been seized from the accused/appellant. In these circumstances, I find that the accused/appellant is entitled to get the benefit of doubt.
In the result, the appeal is allowed and the conviction and sentence imposed against the appellant by the trial court for the offence punishable under Section 55(a) of the Act is set aside. The accused is acquitted under Section 235(1) Cr.P.C. He is set at liberty and his bail bond shall stand cancelled.
Interlocutory applications, if any pending, shall stand closed.
SD/-
C.S.SUDHA JUDGE ak