ORDER : 1. Challenging the conviction and sentence dated 13.12.2013 imposed against the accused finding him guilty of the offence punishable under Section 8(2) of the Kerala Abkari Act (hereinafter referred to as `Abkari Act’ for easy reference) in S.C. No.791 of 2012 on the files of Additional Sessions Court-II, Kasaragode, the accused has come up in appeal arraying State as the respondent. 2. I shall refer the parties in the appeal as `prosecution’ and `accused’ hereinafter for easy reference. 3. The prosecution case is that at about 4 p.m on 13.02.2007, the accused was found in possession of 50 packets of arrack of 100 ml each along the road which leads from Kaikamba to Bayarpadavu carrying a bag, while the Excise Inspector, Excise Range Office, Kumbala, was on patrol duty. When the accused was found perplexed, he was questioned and accordingly the said contraband was taken into custody and crime was registered alleging commission of the offence punishable under Section 8(2) of the Abkari Act. 4. On committal of the case before Sessions Court, Kasaragod, it was made out to the Additional Sessions Court-II, Kasaragod, and the Additional Sessions Court-II tried the matter after framing charge for the said offence. PWs 1 to 5 were examined and Exts.P1 to P13 were marked on the side of the prosecution. Thereafter the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure (`Cr.P.C.’ for short) and was provided opportunity to seek defense evidence. But he did not adduce defense evidence. 5. On appreciation of the evidence, the trial court found the accused guilty for the offence punishable under Section 8(2) of the Abkari Act and accordingly he was sentenced to undergo rigorous imprisonment for a period of two years and also to pay fine of Rs.1 lakh and in default, rigorous imprisonment for 6 months also was imposed. 6. Heard Advocate Nandagopal S. Kurup, the State Brief appointed to argue for the appellant, as well as the learned Public Prosecutor in detail. Perused the case records. 7. While challenging the conviction and sentence, it is pointed out by the learned State Brief that, in this case Ext.P9 inventory was not prepared by the Assistant Excise Commissioner, as mandated under Section 53A of the Kerala Abkari Act. Therefore, preparation of inventory is against the mandate of law and the same will go to the root of the matter. While challenging the conviction and sentence, it is pointed out by the learned State Brief that, in this case Ext.P9 inventory was not prepared by the Assistant Excise Commissioner, as mandated under Section 53A of the Kerala Abkari Act. Therefore, preparation of inventory is against the mandate of law and the same will go to the root of the matter. It is pointed out further that when the procedure under Section 53A of the Abkari Act is not adopted and strictly followed, the preparation of inventory by an authorised officer, the same is fatal to the prosecution. That apart, certification of the inventory by the learned Magistrate under Section 53A of the Act by application of mind also is essential. Otherwise the recovery of the contraband, which is the primary evidence in respect of the offence, would be in doubt and the same would throw away the prosecution case. He has placed decisions of this Court reported in Balakrishna Rai v. State of Kerala , 2020 (3) KHC 286 : 2020 (1) KLD 716 : 2020 (3) KLT 727 : 2020 (3) KLJ 240 : 2020 KER 20317 and Abhilash v. State of Kerala , 2021 KHC 2446 : 2021 KHC OnLine 2446 : 2021 Cri. L.J. NOC 42 in respect of the said contention. 8. It is submitted by the learned Public Prosecutor that as per Ext.P9 inventory, the entire contraband was produced before the court and even though the inventory was in the handwriting of the Excise Inspector Kumbala Range, the Assistant Excise Commissioner actually prepared and signed in the inventory as the authorised officer, as mandated under Section 53A(2) of the Abkari Act. Therefore, it could not be held that there was non compliance of Section 53A in the matter of preparation of the inventory by the Assistant Excise Commissioner. It is also pointed out further that even though certificate in the form of a seal was affixed by the Magistrate in Ext.P7 showing verification of the contraband produced, it would not be said that the Magistrate did not apply her mind while certifying the contraband produced. Therefore, the same would not brush aside the prosecution case. Therefore, the conviction and the sentence would require no interference. 9. Therefore, the same would not brush aside the prosecution case. Therefore, the conviction and the sentence would require no interference. 9. Addressing the rival arguments, the questions to be considered are: (i) Whether there was failure on the part of the Assistant Excise Commissioner in the matter of preparing the inventory under the mandate of Section 53A of the Abkari Act? (ii) Whether there is failure on the part of the Magistrate to verify the material objects within the sweep of Section 53A of the Abkari Act, as contended by the accused? (iii) Whether the trial court went wrong in finding that the accused committed offence under Section 8(2) of the Abkari Act? (iv) Whether the verdict would require interference? (v) Order to be passed? 10. Section 53A of the Abkari Act provides as under: “53A. Disposal of seized liquor, intoxicating drugs or articles. (iii) Whether the trial court went wrong in finding that the accused committed offence under Section 8(2) of the Abkari Act? (iv) Whether the verdict would require interference? (v) Order to be passed? 10. Section 53A of the Abkari Act provides 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 drug 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 shall, as soon as may be, allow the application. (4) Where any liquor or intoxicating drug or article under this Act has been kept under the custody of any court in connection with any offence committed under this Act, before the commencement of the Abkari (Amendment) Ordinance, 2002 or has been brought before a Magistrate without complying the procedure laid down in sub-section (2), the authorised officer shall obtain prior permission of the court or Magistrate before initiating proceedings under sub-section (2). (5) Notwithstanding anything contained in the Indian Evidence Act 1872 (Central Act 1 of 1872) or the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) any Court trying an offence under this Act, shall treat the inventory, the photographs of liquor, intoxicating drug or article and any list of samples drawn under sub-sections (2) and (4) and certified by the Magistrate, as primary evidence in respect of such offence. Explanation. - 'Article' for the purpose of this section includes jaggery and other like substances, the value of which depreciates in passage of time.” 11. It is not disputed that the Government notified Assistant Excise Commissioner as the authorised officer under Section 53A of the Abkari Act. Going through Ext.P9 inventory in this case, the Circle Inspector of Excise, Hosdurg, holding the full additional charge of Assistant Excise Commissioner, had prepared the inventory, though the Assistant Excise Commissioner also signed in the inventory. 12. As per the ratio laid in Balakrishna Rai v. State of Kerala’ s case (supra), Section 53A(2) of the Abkari Act mandates that the inventory shall be prepared by the authorised officer. But 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. 13. In the instant case, going by the evidence given by the authorised officer, it could not be held that there is non compliance of Section 53A(2) of the Abkari Act in the matter of preparation of inventory as authorised officer given evidence to the effect that he had prepared Ext.P9. 14. 13. In the instant case, going by the evidence given by the authorised officer, it could not be held that there is non compliance of Section 53A(2) of the Abkari Act in the matter of preparation of inventory as authorised officer given evidence to the effect that he had prepared Ext.P9. 14. But the second contention raised by the learned counsel for the accused that the Magistrate did not verify the material objects/contraband deserves consideration. 15. In Balakrishna Rai ‘s case (supra), this Court held as under: “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 Magistrate had opened the nylon bag which was sealed and verified its contents. 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. 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 S.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.” 16. This ratio was followed in Abhilash v. State of Kerala ‘s case (supra). Going through the certification in Ext.P9 herein, the same is, in fact, affixing a seal after entering the crime number and striking the word `inconformity’ in the inventory. This ratio was followed in Abhilash v. State of Kerala ‘s case (supra). Going through the certification in Ext.P9 herein, the same is, in fact, affixing a seal after entering the crime number and striking the word `inconformity’ in the inventory. Following the ratio in Balakrishna Rai’ case (supra), when the certification/attestation of the inventory in the present case was done by the Magistrate by affixing seal of certification, the said certification of the inventory issued by the Magistrate would not meet the requirement under Section 53A of the Abkari Act and the same could not be treated as the primary evidence for the offence, alleged to be committed by the accused. Thus it has to be held that the second contention raised by the learned State Brief is sustainable. When the primary evidence itself is not believable, it could not be held that the evidence of PW1 to PW5 relied on by the trial court along with Exts.P1 to P13 would save the prosecution in proving that the accused herein committed offence under Section 8(2) of the Abkari Act. 17. In view of the above, the contention raised by the learned State Brief canvassing acquittal of the accused is liable to succeed and as a sequel thereof, the verdict would require interference. Point No.(v) 18. In the result, the appeal stands allowed and the conviction and sentence imposed by the trial court shall stand set aside and the accused is set at liberty forthwith. His bail bond stands cancelled.