R. Narayana Pisharadi ORDER
R. Narayana Pisharadi, J.
1. The revision petitioner is the accused in the case S.C. No. 217/2019 on the file of the Court of the Assistant Sessions Judge, Hosdurg.
2. The prosecution case is that, on 06.07.2007, at about 15.30 hours, at a public road near the shop of one Poulose at the place Kollaramkode in Kallar Village, PW1 Excise Inspector found the petitioner having in his possession a can containing 2½ litres of arrack.
3. The trial court framed charge against the petitioner for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and in the alternative, under Section 55(a) of the Abkari Act. The petitioner pleaded not guilty and claimed to be tried.
4. The prosecution examined PW1 to PW5 and marked Exts. P1 to P12 documents. No evidence was adduced by the petitioner/accused.
5. The trial court found the petitioner guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months.
6. The petitioner filed Crl. A. No. 129/2013 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 as well as the substantive sentence of imprisonment and also the sentence of fine imposed on him by the trial court but modified the default sentence and reduced it to a period of one month.
7. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition.
8. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records.
9. PW1 is the Excise Inspector who detected the offence. PW2 is the Preventive Officer who was in the excise party led by PW1. They have given evidence regarding the occurrence in detail.
10. The independent witnesses, who were examined by the prosecution as PW3 and PW4, did not support the prosecution case. They denied having seen the incident.
11. Ext. P12 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 29.94% by volume of ethyl alcohol.
12. Learned counsel for the petitioner contended that the conviction entered against the petitioner cannot be sustained for the following reasons: (1) The can containing the arrack allegedly seized from the possession of the petitioner was not produced before the court. (2) The inventory which was certified by the learned Magistrate was not prepared by the authorised officer and therefore, the certificate of inventory cannot be accepted as primary evidence in respect of the offence allegedly committed by the petitioner.
13. Section 53A of the Abkari Act provides for preparation of inventory of liquor seized under the Act, by the authorised officer and also certification of such inventory by the Magistrate concerned. Section 53A(5) of the Abkari 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 certified by the Magistrate, as primary evidence in respect of such offence.
14. If the authorised officer has properly prepared the inventory and the Magistrate concerned has certified it as correct after proper verification, it is not necessary to produce the bulk quantity of liquor seized under the Act before the trial court. The very purpose of the provision contained in Section 53A of the Act is disposal of large quantity of seized contraband liquor immediately after the seizure on retaining evidence regarding the seizure.
15. However, when the procedure under Section 53A of the Abkari 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, then seizure of such liquor itself becomes a doubtful matter. The accused will then be entitled to take advantage of such doubt.
16. In the instant case, the evidence of PW1 would show that he produced the can containing the residue (after taking sample) before the Assistant Excise Commissioner. The Assistant Excise Commissioner had signed the inventory and submitted it before the Magistrate. Ext. P8 is the certificate of inventory issued by the learned Magistrate after verifying the can produced before him.
17. 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. Ext. P7 inventory is signed by the Assistant Excise Commissioner, the authorised officer. However, it also bears a note by PW1 prepared by PW1 Excise Inspector that the sample had been submitted before the Magistrate's Court. PW1 has signed below this note with the date 07.07.2007. It indicates that the inventory was not prepared by the Assistant Excise Commissioner, who is the authorised officer, but it was prepared by PW1 Excise Inspector himself.
18. 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.
19. When the inventory is prepared by an officer not authorised under the Abkari Act it cannot be acted upon by the court and then the entire contraband should be produced before the court (see Chandran @ Chandrasekharan v. State of Kerala: MANU/KE/2035/2016 : 2016 (5) KHC 650: 2016(4) KLT 727).
20. In view of the aforesaid infirmity in the inventory certified by the learned Magistrate, it cannot be treated as primary evidence as envisaged under Section 53A(5) of the Abkari Act in respect of the offence allegedly committed by the petitioner. In the absence of a proper inventory prepared by the authorised officer and certified by the learned Magistrate in evidence, non-production of the bulk quantity of the liquor allegedly seized from the accused creates doubt as to its seizure. The benefit of that doubt shall go to the accused.
21. The above mentioned vital aspects have not been considered by the trial court and the appellate court while 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.
22. Consequently, the revision petition is allowed. Conviction and sentence against the petitioner/accused under Section 8(1) read with 8(2) of the Abkari Act are 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.
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