Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN THURSDAY, THE 30TH DAY OF APRIL 2020 / 10TH VAISAKHA, 1942
JUDGMENT IN SC 263/2006 DATED 05-09-2007 OF ADDITIONAL
SESSIONS COURT (ADHOC), MANJERI APPELLANT/S: BALAN, S/O. ACHAMPATT KUPPARAN, NEDUVA VILLAGE, PARAPPANAGADI,,MALAPPURAM DISTRICT. BY ADV. SRI.K.P.SUDHEER RESPONDENT/S: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,ERNAKULAM. R1 BY PUBLIC PROSECUTOR OTHER PRESENT: B. JAYASURYA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14- 02-2020, THE COURT ON 30-04-2020 DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 30th day of April, 2020. The appellant stands convicted for the offence under Section 55(g) of the Abkari Act. On conviction, the trial court sentenced the appellant to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- with default sentence of six months rigorous imprisonment.
2. According to the prosecution case, on
22.09.2004, the Excise Party attached to the Thirurangadi Excise Division had found the accused at a place called Nagaram near the Chiramangalam Thirichilangady Road by about 8.30 p.m, carrying a white jerry can having capacity of 25 litres. The accused was accosted and the contents of the jerry can examined, upon which it was found to contain 'wash' used for manufacturing arrack. Thereupon the accused was arrested, 500 ml of wash drawn as sample and the sample bottle sealed. Thereafter, the balance wash in the jerry can was destroyed by pouring it out. On chemical analysis, the sample was found to contain 2.27% by volume of ethyl alcohol.
3. In order to prove the prosecution case, PW1 to PW6 were examined and Exts.P1 to P8 were marked. MO1, the jerry can from which the sample was alleged to have been drawn was produced and marked.
4. Based on the evidence, the trial court
held the prosecution to have succeeded in proving
that the accused was found in possession of wash intended for manufacturing arrack. Therefore, the accused was found guilty of having committed an offence under Section 55(g) of the Abkari Act.
5. Heard the learned counsel for the appellant and the learned Public Prosecutor.
6. The main contention urged by the learned Counsel for the appellant is that the trial and conviction of the appellant is vitiated for
violation of the statutory procedure prescribed for destruction of contraband seized in an Abkari offence. It is submitted that the admitted case of the prosecution is that, after taking sample, the balance wash in the jerry can was destroyed at the spot. Reference is made to the evidence of PW1 and PW2, as well as Ext.P3 mahazar. The learned Counsel refers to Section 53 A of the Abkari Act, which deals with disposal of seized liquor, intoxicating drugs or articles, and relies on the decision in Appu v. State of Kerala [2016 (4) KLT S.N 71] in support of the contention. The learned Public Prosecutor would submit that even if it is admitted for the sake of argument that the wash was destroyed without following the requisite procedure, the trial would not be vitiated in the absence of any prejudice having been caused to the accused, in his defence, by such destruction.
7. In the contentions of the appellant has to be appreciated on the basis of the evidence of PW1 and PW2 as also the statement in Ext.P3 mahazar. The testimonies of PW1 and PW2 as well as Ext.P3 is categoric to the effect that after drawing sample from the jerry can, the balance wash was destroyed at the spot. In the mahazar, it is stated that from the wash inside the can, 500 ml was collected as sample into a bottle of 750 ml capacity. The bottle was capped and thereafter, the capped portion was covered with cloth and sealed. It is specifically stated that since there was possibility of the wash getting damaged, it
was poured out of the can in the presence of witnesses. Thereafter, the empty can was capped and sealed. From the evidence, it is clear that only the empty can was seized by the investigating officer. Section 53A of the Abkari Act is as under:
“53A. Disposal of seized liquor, intoxicating drugs or articles.- (1) Notwithstanding anything contained in this Act, the State Government may having regard to the nature of the liquor, intoxicating drug, or article, their 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 their 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 hereinafter specified.
(2) Where any such notified liquor,
intoxicating drug or, article has been seized under this 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 this Act and make an application to any Magistrate 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 or article in the presence of such Magistrate and certifying the correctness of any list of samples so drawn
(3) Where an application is made under sub- section (2) the Magistrate and certifying the correctness of any list of samples so drawn.
(4) xxx.
(5) xxx” The provision makes it clear that it is for the
authorised officer under Section 67B to take a decision regarding disposal of the liquor or intoxicating drug. This would be further evident
from a reading of Section 67B extracted below:-
"67B. Confiscation by Abkari Officers in certain cases.-(1) Notwithstanding anything contained in this Act or in any other law for the time being in force, where any liquor, intoxicating drug material, still, utensil, implement or apparatus or any receptacle, package or covering in which such liquor, intoxicating drug, material, still, utensil, implement or apparatus is found or any animal, cart,
vessel, or other conveyance used in carrying the same is seized and detained under the provisions of this Act; the officer seizing and detaining such property shall, without any unreasonable delay, produce the same before an officer authorised by the Government in this behalf by notification in the Gazette, not being below the rank of an Assistant Excise Commissioner (hereinafter referred to as the authorised officer.
(2) Where an authorised officer
seizes and detains any property specified in sub-section (1) or where any such property is produced before an authorised officer under that sub- section and he is satisfied that an offence under this Act has been committed in respect of or by means of that property and that such property is liable to confiscation under this Act, such authorised officer may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of such property and where such property consists of receptacle or package, the
authorised officer may also order
confiscation of all contents thereof.
(3) When making an order of confiscation under sub-section (2), the authorised officer may also order that such of the properties to which the
order of confiscation relates, which in
his opinion cannot be preserved or are not fit for human consumption, be destroyed.”
8. Interpreting 53A, this Court in Appu v.
State of Kerala held that an Excise official or a police officer who detects an offence under the provisions of the Abkari Act is under the bounden duty to follow these provisions of the Act and that the procedure prescribed under Section 53A
are mandatory in nature. It was held that in cases where the contraband articles are destroyed even without following the procedure prescribed under Section 53 A, such failure would be fatal to the prosecution. For arriving at this conclusion, reference was made to the Division Bench decision of this Court in Ravi v. State of Kerala and
another [2011 (3) KLT 353], which elaborately dealt with the procedure to be followed on seizure of contraband article and the impact of delay in production of the seized article before court.
9. As far as the instant case is concerned, the prosecution evidence itself would reveal that the contraband wash was never seized. On the other hand, sample was drawn from the can, the contents of the can destroyed and thereafter the empty can seized. The said procedure followed by the investigating officer is in complete violation of the procedure prescribed under Sections 34, 40 and 53 A and 67 B of the Abkari Act as well as Section 102 of the Code of Criminal Procedure. The investigating officer having failed to seize the contraband article before drawing sample from
it and having destroyed the contraband without seizure, the investigation and consequently the trial stood vitiated. In such circumstances, the
question as to whether the accused was prejudiced by violation of the procedure is immaterial. Even though specific contention regarding violation of the procedure prescribed in Section 53A was raised before the trial court, that was brushed aside finding it to be a minor lapse. I am unable to accept the said finding of the trial
court. I am of the considered opinion that the accused is entitled to the benefit arising from the serious lapse committed by the investigating officer. In the result, the impugned judgment is set aside and the appellant acquitted. The bail bond of the appellant will stand cancelled. sd/- V.G.ARUN JUDGE Scl/30.04