Kerala High Court | Section 53A Abkari Act Breach in Handling Seized Liquor Invalidates Prosecution for Possession
Isabella Mariam
The High Court of Kerala Single Bench of Justice Johnson John acquitted an accused convicted under Sections 55(g) and 8(1) read with 8(2) of the Abkari Act. The Court held that the prosecution had not established ownership or possession of the property from which illicit liquor was allegedly recovered and found that the procedure mandated under Section 53A for handling seized substances had not been followed. Noting these deficiencies, the Bench concluded that the conviction could not stand and set aside the sentence imposed by the trial court, ordering the appellant’s release from all charge
The matter arose from proceedings initiated following an excise raid conducted on 25 March 2011 at around 5 p.m. The Excise Inspector, along with his team, searched the residence and premises of the accused situated at Kannampady, Peermedu Taluk, Idukki District. The prosecution alleged that during the search, 125 litres of wash, utensils intended for arrack distillation, and 5 litres of arrack stored in a white can were recovered from a pit in the property adjacent to the accused’s house.
Subsequent investigation led to the filing of a final report charging the accused under Sections 55(a) and (i) read with Section 8(1) and 8(2) of the Abkari Act. When the matter was committed to the Court of Session, charges were framed under Sections 55(g) and 8(1) read with 8(2) of the Act. The accused pleaded not guilty, leading to a trial wherein the prosecution examined six witnesses (PWs 1 to 6), produced Exhibits P1 to P9, and marked Material Objects 1 to 7. The defence did not adduce any evidence.
On conclusion of trial, the Additional Sessions Court-IV, Thodupuzha, found the accused guilty. He was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.1,00,000 under Section 55(g) of the Abkari Act, with a default sentence of six months’ simple imprisonment. A similar sentence was awarded under Section 8(1) read with 8(2) of the Act. Both sentences were directed to run concurrently.
The accused challenged the conviction before the High Court contending, among other grounds, that the property from which the alleged contraband was recovered was not established as being in his possession or ownership, and that statutory procedures mandated under Section 53A of the Abkari Act were not complied with.
The State opposed the appeal and supported the trial court’s findings.
Justice Johnson John recorded multiple deficiencies in the prosecution’s case. The judgment noted that the independent witnesses, PWs 4 and 5, had turned hostile, admitting that they had not witnessed the alleged occurrence. PW2, the Excise Inspector who conducted the raid, deposed that “no contraband item is recovered from house bearing No.1/192 of Upputhara Grama Panchayat”. In cross-examination, PW2 further admitted: “I do not remember whose property is situated on the northern and eastern side of the accused’s property. I have not seen the boundaries of the scene of occurrence. There are no surrounding houses shown as witnesses. Children were present there. On the basis of what the elders said, I mentioned it as the property of the accused.”
Similarly, PW3, the Preventive Officer who accompanied the Inspector, stated in cross-examination: “I do not precisely know about the property situated adjacent to the accused’s property. The upper portion of the accused’s property is in the northern side. From the accused’s property, only a jeep can be taken through the pathway. I have not seen the boundaries of the accused’s property.”
The Court noted that PW6, the Investigating Officer, also admitted that he had not taken steps to obtain ownership documents of the property from which the alleged contraband was recovered.
Relying on Ravi C. v. State of Kerala [2011 (3) KHC 427] and Santhosh v. State of Kerala [2021 (5) KHC 214], the Court observed that “only because an article is found kept or stored in a building or house, the owner or occupier of such building cannot be said to have ‘stored’ the article, nor can it be said that he is in ‘possession’ of such article.” Further, unless a person has dominion or control over an article, mere physical proximity cannot establish possession.
The Court also found serious procedural violations concerning disposal of seized items. It was recorded that Exhibit P5 mahazar and the evidence of PW2 confirmed that representative samples were drawn and the remaining wash was destroyed at the site without following the procedure under Section 53A of the Abkari Act. The provision requires preparation of inventory, certification by a Magistrate, and proper documentation. Quoting Andikutty v. State of Kerala [2023 KHC 777], the Court noted that “the mandate of Section 53A has to be complied with in its letter and spirit and if there is violation of Section 53A, the entire prosecution case will vitiate on that ground itself.”
Summarising, the Court observed: “In the absence of satisfactory evidence to show that the accused was in ownership or possession of the property from where the contraband items are alleged to have recovered, the appeal is allowed.”
It directed that “the appeal is allowed and the conviction and sentence imposed by the trial court against the accused/appellant is hereby set aside and he is acquitted of the offences under Sections 55(g) and 8(1) r/w 8(2) of the Abkari Act. Bail bonds executed by the appellant shall stand cancelled and he is set at liberty forthwith.”
Advocates Representing the Parties
For the Appellant: Sri. V.R. Arun, Sri. S. Russel, Advocates
For the Respondent: Sri. Alex M. Thombra, Senior Public Prosecutor
Case Title: Rajappan v. State of Kerala
Case Number: Crl. Appeal No. 835 of 2014
Bench: Justice Johnson John
