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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 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 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.

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 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.

(emphasis supplied)

32. In view of the infirmities pointed out above in the preparation of the inventory by the authorised officer and the 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.