S.53A Abkari Act | Violation Of Procedure For Drawing Samples Of Contraband Vitiates Prosecution: Kerala High Court
The Kerala High Court has acquitted a man sentenced to rigorous imprisonment for four years over alleged possession and manufacture of arrack, citing the failure of the prosecution to establish possession or ownership of the property where the contraband was seized, along with non-compliance of Section 53A (Disposal of seized liquor, intoxicating drugs or articles) of the Abkari Act.
Justice Johnson John, set aside the conviction of the appellant who had been sentenced to four years' imprisonment by the IV Additional Sessions Court, Thodupuzha. The trial court had held him guilty under Sections 55(g) (use or keeps, or has in possession any materials for the purpose of manufacturing liquor or toddy) and 8(1) read with 8(2) (Prohibition of manufacture, import, export, transport, transit, possession, storage, sales, etc., of arrack) of the Abkari Act.
According to the prosecution, excise officials had recovered 125 litres of wash, utensils for brewing, and 5 litres of arrack from property adjacent to the accused's residence during a raid on March 25, 2011. However, during the appeal, the defense argued that the ownership and possession of the land from where the seizure was made had not been established.
The Court held that the prosecution could not establish that the land from which 125 litres of wash and five litres of arrack were allegedly seized was owned, occupied, or controlled by the accused. Independent witnesses turned hostile, and excise officials admitted under cross-examination that they neither verified nor produced any documents regarding ownership.
Referring to Ravi C. v. State of Kerala [2011 (3) KHC 427] and Santhosh v. State of Kerala [2021 (5) KHC 214], the Court reiterated that mere storage of contraband near a residence does not prove constructive possession, nor can ownership be presumed solely based on proximity.
“The prosecution has not adduced any evidence as to who is in ownership and possession of the house and who all are residing in the said house. The prosecution has also not produced any document to prove the ownership and possession of the property from where the contraband items are alleged to have recovered.” the Court observed.
The Court further noted that the excise officers had drawn samples at the scene and destroyed the remaining wash without preparing an inventory or obtaining certification from a Magistrate, as mandated by Section 53A.
The Court emphasized that Section 53A procedures — including preparation of inventory, certification of samples, and Magistrate oversight — are not optional but mandatory. Citing Andikutty v. State of Kerala [2023 KHC 777], the Court observed that violation of Section 53A vitiates the prosecution case in its entirety.
The Court thus set aside the conviction and acquitted the appellant of offences under the Abkari Act.
Case Title: Rajappan v State of Kerala
Case No: Crl. A 835/ 2014
Citation: 2025 LiveLaw (Ker) 571
Counsel for Appellant: V R Arun, S Russel, Anto Thomas,
Counsel for Respondent: Alex M Thombra (Sr. PP)