R. Narayana Pisharadi ORDER
R. Narayana Pisharadi, J.
1. The revision petitioner is the accused in the case S.C. No. 217/2019 on the file of the Court of the Assistant Sessions Judge, Hosdurg.
2. The prosecution case is that, on 06.07.2007, at about 15.30 hours, at a public road near the shop of one Poulose at the place Kollaramkode in Kallar Village, PW1 Excise Inspector found the petitioner having in his possession a can containing 2½ litres of arrack.
3. The trial court framed charge against the petitioner for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and in the alternative, under Section 55(a) of the Abkari Act. The petitioner pleaded not guilty and claimed to be tried.
4. The prosecution examined PW1 to PW5 and marked Exts. P1 to P12 documents. No evidence was adduced by the petitioner/accused.
5. The trial court found the petitioner guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months.
6. The petitioner filed Crl. A. No. 129/2013 before the Court of Session, Kasaragod challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the substantive sentence of imprisonment and also the sentence of fine imposed on him by the trial court but modified the default sentence and reduced it to a period of one month.
7. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused has filed this revision petition.
8. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records.
9. PW1 is the Excise Inspector who detected the offence. PW2 is the Preventive Officer who was in the excise party led by PW1. They have given evidence regarding the occurrence in detail.
10. The independent witnesses, who were examined by the prosecution as PW3 and PW4, did not support the prosecution case. They denied having seen the incident.
11. Ext. P12 is the chemical analysis report in respect of the sample of liquid which was sent to the laboratory for examination. It shows that the sample of liquid contained 29.94% by volume of ethyl alcohol.
12. Learned counsel for the petitioner contended that the conviction entered against the petitioner cannot be sustained for the following reasons: (1) The can containing the arrack allegedly seized from the possession of the petitioner was not produced before the court. (2) The inventory which was certified by the learned Magistrate was not prepared by the authorised officer and therefore, the certificate of inventory cannot be accepted as primary evidence in respect of the offence allegedly committed by the petitioner.
13. Section 53A of the Abkari Act provides for preparation of inventory of liquor seized under the Act, by the authorised officer and also certification of such inventory by the Magistrate concerned. Section 53A(5) of the Abkari Act states that, notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, any court trying an offence under the Act, shall treat the inventory certified ........