Kerala High Court
Balakrishna Rai vs State Of Kerala on 4 June, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
THURSDAY, THE 04TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942
Crl.Rev.Pet.No.2143 OF 2013
PETITIONER/APPELLANT/ACCUSED:
BALAKRISHNA RAI
AGED 43 YEARS
S/O.LATE RAMANNA RAI,R/AT KARYAD,BADIADKA
VILLAGE,KASARAGOD TALUK & DIST
BY ADV. SRI.S.JIJI
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM
SRI.C.K.PRASAD PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 28.05.2020, THE COURT ON 04.06.2020 PASSED THE FOLLOWING:
Crl.R.P.No.2143/2013
2
"CR"
R.NARAYANA PISHARADI, J
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Crl.R.P.No.2143 of 2013
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Dated this the 4th day of June, 2020
ORDER
The revision petitioner is the accused in the case S.C No.251/2010 on the file of the Court of the Assistant Sessions Judge, Kasaragod.
2. Concurrent verdicts of guilty and conviction recorded against the petitioner by the courts below under Section 8(2) of the Abkari Act, 1077 (hereinafter referred to as 'the Act') are assailed in this revision petition.
3. The prosecution case is that, on 22.08.2008, at about 18:15 hours, at a public road at the place Karyad in Badiadka Village, PW1 Preventive Officer found the petitioner having in his possession 47 polythene covers, each cover containing 100 ml. of arrack, kept in a nylon bag.
Crl.R.P.No.2143/20133
4. The trial court framed charge against the petitioner for the offence punishable under Section 8(2) of the Act. The petitioner pleaded not guilty and claimed to be tried.
5. The prosecution examined PW1 to PW5 and marked Exts.P1 to P11 documents. No evidence was adduced by the petitioner/accused.
6. The trial court found the petitioner guilty of the offence punishable under Section 8(2) of the Act and convicted him thereunder. The trial court sentenced him to undergo simple imprisonment for a period of three years and also to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months.
7. The petitioner filed Crl.A.No.137/2012 before the Court of Session, Kasaragod challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction recorded against the petitioner but modified the substantive sentence of imprisonment imposed on him by the trial court and reduced it to simple imprisonment for a period of one year and confirmed the sentence of fine. Crl.R.P.No.2143/2013 4
8. The concurrent verdicts of guilty and conviction recorded against him by the courts below and the sentence imposed on him by the appellate court are challenged by the accused in this revision petition.
9. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records.
10. PW1 is the Preventive Officer who detected the offence. PW4 is another Preventive Officer who was in the excise party led by PW1. They gave evidence regarding the occurrence in detail. The fact that the independent witnesses, who were examined as PW2 and PW3, did not support the prosecution case is not a sufficient ground to disbelieve the evidence of PW1 and PW4 regarding the occurrence.
11. Ext.P10 is the chemical analysis report in respect of the sample of liquid which was sent to the laboratory for examination. It shows that the sample of liquid contained 28.26% by volume of ethyl alcohol.
12. Learned counsel for the petitioner contended that the conviction entered against the petitioner cannot be sustained for Crl.R.P.No.2143/2013 5 the following reasons: (1) The bulk quantity of the contraband liquid allegedly seized from the possession of the petitioner was not produced before the court and marked as material object during the trial. (2) The inventory certified by the learned Magistrate was not prepared by the authorised officer and therefore, it cannot be accepted as evidence in respect of the offence allegedly committed. (3) The sample which was sent for analysis was not drawn in the presence of the Magistrate as required under Section 53A of the Act and therefore, the chemical analysis report cannot form the basis of conviction.
13. Section 53A(1) of the Act states that, notwithstanding anything contained in the 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 notification in the official Gazette, specify such liquor, intoxicating drug or article which shall, as soon as may be after its 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 Crl.R.P.No.2143/2013 6 after following the procedure specified.
14. The State Government has issued notification SRO 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 Abkari Act. As per this notification, spirit, Indian Made Foreign Liquor and arrack have been specified as the liquors which may be disposed of by the authorised officer as provided in Section 53A of the Act.
15. Section 53A(2) of the Act provides that, where any such notified liquor, 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 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 are kept, place of origin and other particulars, as the 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 Crl.R.P.No.2143/2013 7 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; or (b) 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.
16. Section 53A(5) of the Act states that, notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, 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.
17. Section 53A of the Act comes into play when the liquor seized under the Act has to be disposed of by the authorised officer immediately after its seizure. In such cases, the authorised officer shall prepare an inventory of such liquor. The Crl.R.P.No.2143/2013 8 inventory so prepared shall contain necessary details which are relevant to identify the liquor in any proceedings under the Act. The authorised officer shall then make an application to the Magistrate concerned for any of the following three purposes, namely, (a) certifying the correctness of the inventory so prepared; or (b) taking photographs of the liquor in the presence of the Magistrate and to certify such photographs as true; or (c) to allow drawing of representative samples of the liquor in the presence of the Magistrate and to certify the correctness of any list of samples so drawn. The certificate so issued by the learned Magistrate shall be treated as primary evidence during the trial in respect of the offence.
18. Dealing with the contention regarding non-production of bulk quantity of contraband article before the court during the trial of the case, in State Rajasthan v. Sahi Ram : AIR 2019 SC 4723, the Supreme Court has held as follows:
"If the seizure of the material is otherwise proved on record and is not even doubted or disputed the entire contraband material need not be placed before the Court. If the seizure is otherwise not in doubt, Crl.R.P.No.2143/2013 9 there is no requirement that the entire material ought to be produced before the Court. At times the material could be so bulky, for instance as in the present material when those 7 bags weighed 223 Kgs that it may not be possible and feasible to produce the entire bulk before the Court. If the seizure is otherwise proved, what is required to be proved is the fact that the samples taken from and out of the contraband material were kept intact, that when the samples were submitted for forensic examination the seals were intact, that the report of the forensic experts shows the potency, nature and quality of the contraband material and that based on such material, the essential ingredients constituting an offence are made out".
19. Again, in Than Kunwar v. State of Haryana:
MANU/SC/0242/2020, after surveying the case law on the issue, the Apex Court has re-iterated the principle that, if the seizure is otherwise not in doubt, there is no requirement that the entire material ought to be produced before the Court during the trial of the case and marked as material object.
20. The very purpose of the provisions contained in Section 53A of the Act is disposal of large quantity of seized contraband liquor immediately after the seizure on retaining evidence Crl.R.P.No.2143/2013 10 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.
21. 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.
22. In the instant case, the evidence of PW1 would show that, out of the 47 packets of alleged liquor seized from the possession of the petitioner, the liquid from three packets was poured into a bottle and it was taken as sample at the spot of the Crl.R.P.No.2143/2013 11 occurrence itself. The sample thus taken was produced before the court as per Ext.P7 property list on the date of the occurrence itself and this sample was forwarded for chemical analysis as per Ext.P8 forwarding note. Ext.P10 chemical examination certificate relates to the aforesaid sample.
23. The evidence of PW1 and the recitals in Ext.P4 seizure mahazar would show that PW1 had put the remaining 44 packets of liquor in the nylon bag and sealed the bag and affixed label bearing his signature and also the signature of the witnesses and the accused on the bag and he produced it before the Assistant Excise Commissioner for preparation of inventory. The Assistant Excise Commissioner submitted the inventory signed by him before the Judicial First Class Magistrate, Kasaragod, along with an application, specifying all the three purposes mentioned under Section 53A(2) of the Act.
24. There is merit in the contention of the learned counsel for the petitioner that the inventory was not prepared by the authorised officer but it was only signed by him. True, Ext.P9 inventory is signed by the Assistant Excise Commissioner, the Crl.R.P.No.2143/2013 12 authorised officer. But, it also bears the signature of the Preventive Officer with the date 22.08.2008, that is, the date of the occurrence. It indicates that the inventory was not prepared by the Assistant Excise Commissioner, who is the authorised officer, but it was prepared by PW1 Preventive Officer himself.
25. This Court dealt with almost similar facts in Chandran @ Chandrasekharan v. State of Kerala : 2016 (5) KHC 650:
2016 (4) KLT 727 and it was held as follows:
"In this case, PW1 was admittedly not an authorised officer under Section 67B of the Abkari Act. Therefore, he was not an authorised officer competent to prepare the inventory under sub-section (2) of Section 53A of the Abkari Act. Since Ext.P7(a) was prepared by an officer not authorised under the Abkari Act, Ext. P7(a) cannot be acted upon as the same is patently illegal. When Ext.P7(a) cannot be acted upon, the entire contraband should have been produced before the Court. However, in this case, the contraband articles were not produced before the Court and instead of that, the prosecution relied on Ext.P7(a) inventory, which is patently illegal Crl.R.P.No.2143/2013 13 and consequently, the revision petitioner is entitled to acquittal".
(emphasis supplied)
26. Section 53A(2) of the Act mandates that the inventory shall be prepared by the authorised officer. Of course, it is not necessary that he shall prepare the inventory in his own handwriting or that the physical act of writing or making it shall be done by himself. But, he shall be the author of the inventory prepared. He shall not simply adopt the inventory prepared by the detecting officer and mechanically sign it and submit it before the Magistrate for certification. It is for the authorised officer to consider and include in the inventory the particulars necessary to identify the liquor.
27. The property described in Ext.P9 inventory is a sealed and labelled nylon bag, which allegedly contained 44 packets of arrack. What was produced before the Magistrate for certification was a sealed nylon bag which allegedly contained 44 packets of arrack. The certification of inventory by the Magistrate should have been done in respect of the packets containing the arrack, Crl.R.P.No.2143/2013 14 the notified liquor.
28. The learned Magistrate has certified the inventory by affixing a seal as follows:
CERTIFICATE Certified that the inventory in Cr.No........... of ..............Range/PS is in conformity with/not in conformity with the material objects verified.
After affixing the aforesaid seal, learned Magistrate has filled up the blanks in the above seal with the crime number of the case and the name of the excise range office and struck off the words "not in conformity" with pen and signed below it.
29. The certificate mentioned above, affixed by the learned Magistrate on Ext.P9 inventory, would indicate that he had not actually verified the particulars of the packets of liquor contained in the sealed nylon bag which was produced before him. The certificate does not reveal whether the nylon bag, which was produced before the learned Magistrate, contained 44 packets of liquid. There is nothing to show that the learned Crl.R.P.No.2143/2013 15 Magistrate had opened the nylon bag which was sealed and verified its contents.
30. The practice of certifying the inventory by affixing any seal and by filling up the blank spaces in the seal has to be deprecated. The Magistrates who certify the inventory under the Abkari Act or the Narcotic Drugs and Psychotropic Substances Act have to bear in mind that the certificate being issued by them would be treated as primary evidence in respect of the offence during the trial of the case. Inventory shall be certified by the Magistrates only after carefully verifying the correctness of the particulars of the property mentioned and described in it.
31. True, in Santhosh v. State of Kerala : 2017 (5) KHC 107, a learned Judge of this Court has taken the view that a Judicial Magistrate cannot entertain an application under Section 53A of the Abkari Act since the act contemplated by that provision is not a judicial one, but executive. Examination of that question is not really necessary for disposing this revision petition. Suffice it to state here that, the decision of the Apex Crl.R.P.No.2143/2013 16 Court in Union of India v. Mohanlal : 2016 (3) SCC 379, which deals with the scope of the similar provision of Section 52A in the Narcotic Drugs and Psychotropic Substances Act, indicates that certification of inventory, list of samples drawn etc is a function to be exercised by a Judicial Magistrate. Such an indication is there in the direction given by the Apex Court which reads as follows:
"We are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs .....".
(emphasis supplied)
32. In view of the infirmities pointed out above in the preparation of the inventory by the authorised officer and the Crl.R.P.No.2143/2013 17 certification of the inventory by the learned Magistrate under Section 53A of the Act, I find that the certificate of inventory issued by the learned Magistrate in this case cannot be treated as primary evidence in respect of the offence allegedly committed by the petitioner.
33. The bulk quantity of the arrack allegedly seized from the possession of the petitioner was not produced before the trial court. No evidence was adduced regarding the disposal of the bulk quantity of the liquor. The inventory prepared and certified under Section 53A(2) of the Act is infirm and it cannot be treated as primary evidence as envisaged under Section 53A(5) of the Act. Inspite of the procedure adopted under Section 53A of the Act, representative sample was not drawn in the presence of the Magistrate from the liquid seized from the possession of the petitioner. Ext.P10 chemical analysis certificate does not relate to such representative sample drawn under Section 53A(2) of the Act.
34. The above mentioned vital aspects have not been considered by the trial court and the appellate court while Crl.R.P.No.2143/2013 18 appreciating the prosecution evidence. In such circumstances, the order of conviction and sentence passed against the petitioner/accused by the courts below cannot be sustained. The petitioner/accused is entitled to be acquitted.
35. Consequently, the revision petition is allowed. The order of conviction and sentence against the petitioner/accused under Section 8(2) of the Abkari Act is set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. Bail bond, if any, executed by him stands cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him.
(sd/-) R.NARAYANA PISHARADI, JUDGE jsr/02/06/2020 True Copy PS to Judge