Kerala HC Acquits Accused Under Abkari Act as Magistrate's Signature Missing From Inventory Required by Section 53A

The High Court of Kerala set aside concurrent convictions for illicit arrack possession, holding that the absence of the Magistrate's signature on the destruction inventory under Section 53A of the Abkari Act entitled the accused to the benefit of doubt.

Justice Jobin Sebastian, sitting singly at the High Court of Kerala, Ernakulam, on 19 May 2026 allowed a criminal revision petition filed by A. Raju, the sole accused in a case arising from the seizure of 4 litres of illicit arrack on 26 September 2009. Both the Assistant Sessions Court, Hosdurg, and the Sessions Court, Kasaragod, had convicted him under Section 8(2) read with Section 8(1) of the Abkari Act and sentenced him to one year of rigorous imprisonment with a fine of Rs. 1,00,000. The High Court found that the inventory prepared before destruction of the residue arrack, a document that assumes the character of primary evidence, bore neither the signature nor the seal of the certifying Magistrate as required by Section 53A of the Abkari Act. That procedural failure, the court held, cast sufficient doubt on the seizure itself to warrant acquittal.

The Prosecution Case and the Trial Record

According to the prosecution, on 26 September 2009 at around 2.30 p.m., the accused was caught in possession of 4 litres of illicit arrack in contravention of the Abkari Act. The case was registered as Crime No. 42/2009 of the Hosdurg Excise Range Office, Kasaragod.

At trial before the Assistant Sessions Court, Hosdurg, in S.C. No. 97/2011, the prosecution examined three witnesses, PW1 to PW3, and marked twelve documents, Exts. P1 to P12. PW1 was the detecting officer, the Excise Inspector of the Hosdurg Excise Range, who narrated the sequence of events and described the procedures followed for search, seizure, and sampling at the place of detection.

After the prosecution closed its evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure. He denied all incriminating circumstances. The court did not find it a fit case for acquittal under Section 232 of the Code and called upon the accused to enter his defence. No defence evidence was adduced.

The Assistant Sessions Judge convicted the accused under Section 8(2) read with Section 8(1) of the Abkari Act and sentenced him to rigorous imprisonment for one year and a fine of Rs. 1,00,000. In default of payment of fine, he was directed to undergo further rigorous imprisonment of six months.

The Appeal and the Revision Before the High Court

The accused challenged the conviction in Criminal Appeal No. 275/2015 before the Sessions Court, Kasaragod. The Sessions Judge confirmed both the findings and the sentence of the trial court.

A. Raju then filed Crl.Rev.Pet No. 522 of 2017 before the High Court under Sections 397 and 401 of the Code of Criminal Procedure. Sri K. P. Harish, along with Smt. Anitha Mathai Muthirenthy and Sri Jackson Johny, appeared for the revision petitioner. Sri G. Sudheer, Public Prosecutor, appeared for the State.

Arguments on Search, Seizure, and the Inventory

The revision petitioner's counsel argued that both courts below had convicted the accused mechanically without properly appreciating the evidence. The central submission was that the procedures relating to search, seizure, and sampling were not carried out in strict compliance with law, and that such lapses were sufficient to vitiate the prosecution case.

Specifically, counsel pointed to the inventory prepared before the destruction of the residue arrack. Although the prosecution claimed the residue was disposed of in compliance with Section 53A of the Abkari Act and the inventory was marked as Ext. P8, neither the signature nor the seal of the Magistrate who allegedly certified the inventory appeared anywhere in that document.

The Public Prosecutor countered that seizure, sampling, and sealing had been carried out scrupulously. He submitted that sufficient link evidence had been adduced to establish the chain of custody of the sample from the place of detection to the chemical examiner, and that no interference with the concurrent findings of the two courts below was warranted.

What Section 53A of the Abkari Act Requires

Section 53A of the Abkari Act prescribes a specific procedure when seized contraband is to be disposed of before trial. Under sub-section (2), after preparing an inventory, the Authorised Officer must apply to the Magistrate having jurisdiction over the area where the seized liquor is stored. The Magistrate may then: (a) certify the correctness of the inventory; (b) take photographs of the contraband in the Magistrate's presence and certify them as true; or (c) allow representative samples to be drawn in the Magistrate's presence and certify the list of samples so drawn.

Sub-section (3) mandates that upon such an application, the Magistrate shall, as soon as may be, visit the place where the contraband is stored and take the appropriate steps listed in sub-section (2).

The High Court read these provisions as imposing a mandatory obligation, not a directory one. The inventory prepared under this process is treated as primary evidence in an Abkari prosecution, which is precisely why the Magistrate's certification carries legal weight.

The Court's Reasoning on the Missing Certification

Justice Jobin Sebastian examined Ext. P8, the inventory prepared before destruction of the residue arrack, and found it deficient in a material respect. The document contained no signature and no seal of the Magistrate who was said to have certified its correctness.

The court accepted the prosecution's position on the chain of custody of the sample that reached the chemical examiner. PW1's evidence showed that representative samples were drawn at the place of detection. The seizure mahazar bore the specimen impression of the seal used to seal the sample bottle. The forwarding note accompanying the sample to the chemical examiner also carried the specimen seal. The chemical examination report, Ext. P12, recorded that the seal on the sample bottle tallied with the specimen seal in the forwarding note. On that aspect, the court found the prosecution's case intact.

The difficulty lay elsewhere. The court observed that the act of certifying an inventory under Section 53A is not an empty formality. Because the certified inventory functions as primary evidence, the Magistrate must satisfy himself about the correctness of the particulars and description of the property before certifying it. The Magistrate is expected to exercise due care and caution precisely because the document will be relied upon at trial.

In Ext. P8, there was nothing to indicate that any such verification had taken place. The absence of the Magistrate's signature or seal from a document that is supposed to bear those marks of certification meant that the mandatory procedure under Section 53A had not been strictly followed.

The court then drew the consequence: when the prescribed procedure under Section 53A is not strictly complied with, and when the residue of the contraband is not produced before the court, and when there is no satisfactory evidence of its lawful destruction or disposal, the very seizure of the contraband becomes doubtful. In those circumstances, the accused is entitled to the benefit of doubt.

Outcome

Justice Jobin Sebastian allowed Crl.Rev.Pet No. 522 of 2017 on 19 May 2026. The judgment of conviction and the order of sentence passed against A. Raju for the offence punishable under Section 8(2) read with Section 8(1) of the Abkari Act were set aside. The accused was acquitted of the said offence. The court further directed that any fine amount deposited by the revision petitioner shall be refunded to him in accordance with law.