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2022 DIGILAW 568 (KER)

Kusuma, W/O. Narayana Gowda v. State Of Kerala

2022-07-12

A.BADHARUDEEN

body2022
JUDGMENT : This appeal arises out of conviction and sentence imposed by the Additional District and Sessions Court-III, Kasargod dated 30.12.2013 in S.C.No.927/2012 against the appellant under Section 8(1) r/w 8(2) of the Kerala Abkari Act. The appellant is the accused before the trial court. 2. Heard the learned counsel for the appellant as well as the learned Public Prosecutor. 3. The prosecution case is as follows: It is alleged by the prosecution that on 23.11.2009 at about 5 pm, the appellant was found transiting 4 litres of ID arrack in a white plastic can, having capacity of 10 litres against the prohibitions contained in the Kerala Abkari Act and thereby the appellant committed offence under Section 8(1) r/w 8(2) of the Kerala Abkari Act. 4. The court below tried the matter after following the pre-trial formalities. PW1 to PW4 examined and Exts.P1 to P10 marked on the part of the prosecution. 5. No defence evidence adduced though opportunity was given to the accused to adduce defence evidence. 6. After appraising the evidence, the trial court convicted and sentenced the accused under Section 8(1) r/w 8(2) of the Kerala Abkari Act and he was sentenced to undergo rigorous imprisonment for a period of two years and pay a fine of Rs.1,00,000/-. In default of payment of fine, default imprisonment for a period of six months also was imposed. Set off also was allowed. 7. While assailing the judgment of the trial court, the learned counsel for the appellant argued that in this matter, the inventory marked as Ext.P6 was prepared by PW2, the Excise Inspector himself in violation of the mandate of Section 67B of the Kerala Abkari Act. According to the learned counsel for the appellant, as per Section 67B of the Kerala Abkari Act, the authorised officer must be an officer authorised by the Government by notification in the Gazette and the said officer is an officer not below the rank of an Assistant Excise Commissioner. In support of this argument, decision of this Court reported in Chandran v. State ( 2016 (4) KLT 727 ) is placed by the learned counsel for the appellant. 8. The learned Public Prosecutor also not disputed the legal position and she also submitted that the legal position as argued by the learned counsel for the appellant is not changed so far. 9. 8. The learned Public Prosecutor also not disputed the legal position and she also submitted that the legal position as argued by the learned counsel for the appellant is not changed so far. 9. Going by the decision highlighted by the learned counsel for the appellant, subsequently followed in the decision reported in Balakrishna Rai v. State of Kerala ( 2020(3) KLT 727 ), the legal position is emphatically clear that Section 53A(2) of the Kerala Abkari Act mandates that the inventory shall be prepared by the authorised officer. Section 67B provides that the authorised officer must be an officer authorised by the Government by notification in the Gazette and the said officer is an officer not below the rank of Assistant Excise Commissioner. 10. SRO 671/75 provides that Assistant Commissioners in-charge of Excise Divisions are authorised officers under sub-section (1) of Section 67B of Abkari Act for the purpose of Section 67B within their respective jurisdiction. 11. Here, the Sessions Court relied upon the evidence of PW1, PW2 and PW4 to convict the accused. Admittedly and evidently, PW2, who prepared Ext.P6 inventory is none other than the Excise Inspector and is not an authorised officer as provided under Section 67B of the Abkari Act. Therefore, the inventory prepared in this case is vitiated. 12. In Chandran's case (Supra), and in a subsequent decision reported in Abhilash v. State of Kerala (2021 KHC 2446) this Court held that when inventory was prepared in violation of the statutory mandate, accused is entitled to acquittal. In this case, PW3, an independent witness cited by the prosecution to prove preparation of Ext.P1 mahasar pertaining the recovery turned hostile to the prosecution and nothing extracted from him even during his examination after declaring him hostile, to support the prosecution. The trial court relied on the evidence of official witnesses to record conviction. It is a settled law that conviction can be recorded relying on the evidence of official witnesses also, when the evidence wholly reliable. 13. It is true that PW1 given evidence supporting the recovery, but during cross-examination, he failed to give details regarding the nature of the roads surrounding the place of occurrence. That shadows doubt in the evidence of PW1. PW2, who also supported evidence of PW1, stated during cross-examination that in Ext.P2 specimen seal, crime number was recorded and it was written after reaching the office. 14. That shadows doubt in the evidence of PW1. PW2, who also supported evidence of PW1, stated during cross-examination that in Ext.P2 specimen seal, crime number was recorded and it was written after reaching the office. 14. Since there is noncompliance of the mandatory provision under Section 67B of the Kerala Abkari Act, the prosecution case is vitiated and therefore, the accused herein is entitled to get acquittal. In the result, this appeal stands allowed and the conviction and sentence imposed by the trial court against the appellant stand set aside and the bail bond of the appellant stands cancelled. It is ordered that fine, if any, deposited by the appellant in obedience to the order of this Court shall be refunded to the appellant, as per law.