Violation Of Mandate U/S 53A & S.38 Abkari Act Gives Benefit Of Doubt To Accused: Kerala High Court
The Kerala High Court has recently held that when there is a violation of the mandate under Sections 53A and 38 of the Abkari Act, the accused is entitled to the benefit of doubt. The Court was considering an appeal preferred by two persons, who were convicted of the offence under Section 8(2) of the Act.
Justice Johnson John observed: “As noticed earlier, in this case, there is violation of the mandate of Sections 53A and 38 of the Abkari Act and there is also no satisfactory evidence to establish a fool proof chain of custody to prove that it was the sample taken from the contraband liquor which ultimately reached the hands of the chemical examiner in a fool proof condition and therefore, I find that the appellants are entitled for the benefit of reasonable doubt.”
As per Section 38, every Abkari officer is bound to immediately inform his immediate superior or an Abkari inspector when he comes to know of any breach of the provisions of the Act. According to Section 53A(2)(c), the samples are to be drawn in the presence of a Magistrate.
Section 8 deals with the prohibition of manufacture, import, export, transport, transit, possession, storage, sales, etc., of arrack.
The prosecution's case was that the Sub-Inspector (PW6) and the party found 3000 packets of arrack containing 100 ml each in plastic sacks inside an autorickshaw. The first accused, driver and second accused, the passenger of the autorickshaw were arrested.
Before the High Court, the prosecution stated that the evidence of PW6, PW1 police constable and the chemical analyst report was enough not to interfere with the impugned judgment.
The appellants urged that there was violation of statutory mandates under Sections 38 and 53A, and the procedural requirements for ensuring untampered sample collection and production before the chemical examiner. They also contended that the independent witnesses, who were stated to have witnessed the alleged occurrence of the crime, turned hostile during trial.
The Court placed reliance on Vijayan @ Puthoor Vijayan v. State of Kerala [2021 (5) KHC 347], which laid down the steps to be followed by the officer collecting the sample, thondi clerk and the chemical examiner.
It noted that the same were not complied with the present case since as per the deposition of PW6, he affixed label and sealed the sample bottles using the SHO's seal but not regarding the nature of the seal used. The impression of the seal was not affixed in the seizure mahazar or the property list that were produced in evidence before the trial court.
Referring to Antony v. State of Kerala [2024 KHC OnLine 1082], Vijay Pandey v. State of Uttar Pradesh [AIR 2019 SC 3569] and Rajamma v. State of Kerala [2014 (1) KLT 506], the Court found that the prosecution has to prove that the contraband allegedly seized from the accused was the same that reached the Chemical Examiner's laboratory, untampered. If not, the report of the chemical examiner cannot be relied upon.
It further noted that, in the present case, the PW6 SI took sample of the contraband but it is not mentioned whether the samples were drawn in the presence of a magistrate as required under Section 53A. Moreover, since PW6 did not inform his superior or an Abkari Inspector at the time, the mandate under Section 38 was violated.
Thus, the Court allowed the appeal and set aside the finding of guilt and conviction.
Case No: Crl.A. No. 1184 of 2010
Case Title: Prabhu Prakash and Anr. v. State of Kerala
Citation: 2025 LiveLaw (Ker) 646
Counsel for the appellants: P. Mohamed Sabah, Saipooja, Faizel K.
Counsel for the respondent: Hasnamol N.S. – Public Prosecutor