Absence Of Magistrate's Signature, Seal On Contraband Inventory Vitiates Prosecution Under Abkari Act: Kerala High Court
The Kerala High Court recently acquitted a man, who was convicted of offences under the Abkari Act, observing that he is entitled to the benefit of doubt since there was no signature or seal of the Magistrate who certified the correctness of the inventory as required under Section 53A.Under Section 53A(2) after preparing the inventory, the Authorized Officer has to make an application before...
The Kerala High Court recently acquitted a man, who was convicted of offences under the Abkari Act, observing that he is entitled to the benefit of doubt since there was no signature or seal of the Magistrate who certified the correctness of the inventory as required under Section 53A.
Under Section 53A(2) after preparing the inventory, the Authorized Officer has to make an application before the jurisdictional Magistrate where the seized articles are stored for (a) certifying the correctness of the inventory (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 article in the presence of Magistrate and certifying the correctness of any list of samples so drawn.
Justice Jobin Sebastian observed:
“In the present case,… there is nothing to indicate that the Magistrate had verified and certified the correctness of the inventory, particularly when neither the signature nor the seal of the Magistrate is found in such a crucial document. When the procedure prescribed under Section 53A of the Abkari Act is not strictly complied with, and when the residue of the contraband after drawing sample is not produced before the court, coupled with the absence of satisfactory evidence regarding its lawful destruction or disposal, the very seizure of the contraband becomes doubtful. In such circumstances, the accused is entitled to the benefit of doubt.”
The Court was considering a criminal revision petition preferred by the accused, who was adjudged guilty by the trial court as well as the appellate court.
The prosecution allegation was that the petitioner was found to be in possession of 4 litres of illicit arrack. He was convicted of the offence under Section 8(2) read with 8(1) of the Abkari Act and sentenced to one year rigorous imprisonment and fine of Rs. 1 lakh.
The petitioner argued that he was convicted mechanically as the trial court and appellate court did not appreciate the evidence on record property. It was pointed out that search, seizure and sampling procedures were not conducted in accordance with law and therefore, the prosecution case was vitiated.
According to the petitioner, even though the residue of the arrack, after drawing of sample, was disposed of after preparation of inventory, its correctness was not properly certified by the Magistrate since his sign and seal were not present.
The Court examined Section 53A of the Act and remarked:
“The act of certifying an inventory under Section 53A of the Abkari Act is not an empty formality, especially since such inventory is treated as primary evidence in an Abkari case. Therefore, while certifying the inventory, the Magistrate is expected to exercise due care and caution, bearing in mind that the document so certified would assume the character of primary evidence during trial. The Magistrate must satisfy himself regarding the correctness of the particulars and description of the property contained in the inventory before certifying the same.”
The Court, thus, felt that the petitioner is entitled to the benefit of doubt since the seizure itself has become doubtful. It then set aside the conviction and acquitted him. It was clarified that fine amounts, if paid, must be refunded to him.
Case No: Crl.Rev.Pet. No. 533 of 2017
Case Title: A. Raju v. State of Kerala
Citation: 2026 LiveLaw (Ker) 283
Counsel for the petitioner: K.P. Harish, Anitha Mathai Muthirenthy, Jackson Johny
Counsel for the respondent: G. Sudheer – Public Prosecutor