A Sundaram v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 17TH DAY OF DECEMBER 2020 / 26TH AGRAHAYANA, 1942** ## **CRL.A.No.2401 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 294/2005 DATED 23-09-2006 OF ADDITIONAL DISTRICT COURT (ADHOC), KASARAGOD** **AGAINST THE ORDER/JUDGMENT IN CP 270/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,HOSDRUG** ## **APPELLANT/S:** **A.SUNDARAM AGED 44 YEARS S/O. APPU, NELLIYADUKKAM COLONY, PANAYAL VILLAGE,, KASARAGOD DISTRICT.** ## **BY ADV. SRI.T.K.VIPINDAS** ## **RESPONDENT/S:** ## **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM, REPRSENTING THE, S.H.O., BEKAL POLICE STATION.** **R1 BY PUBLIC PROSECUTOR SR.PP- SRI. K.B.UDAYAKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-12-2020, THE COURT ON 17-12-2020 DELIVERED THE FOLLOWING:** **CRL.A.No.2401 OF 2006** **2** ## **J U D G M E N T** **Dated this the 17th day of December 2020** Appellant is the accused in Sessions Case No. 294/2005 on the file of the Additional Sessions Judge (Adhoc-I), Kasaragod. 2. The above case is chargesheeted by the Sub Inspector of Police, Bakel Police Station, alleging offence punishable under Section 55(a) of the Abkari Act. 3. The prosecution case is that the accused was found in possession 4[1] /2 liters of arrack in a plastic can on 26.04.2004 at 6.30 p.m on the margin of Nelliyadukkam Battathodu road, Panayal Village in contravention of the provisions of the Abkari Act. 4. To substantiate the case, the prosecution examined PW1 to PW6. Exts.P1 to P9 are also marked on the side of the prosecution. After going through the evidence and the documents, the trial court found that the accused committed the **CRL.A.No.2401 OF 2006** **3** offence under Sec.55(a) of the Abkari Act. The accused was sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.1 lakh. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for a further period of three months. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 5. Heard learned counsel for the appellant and learned Public Prosecutor. 6. The counsel for the appellant submitted that the accused is entitled acquittal in this case, on three grounds. The counsel submitted that the alleged seizure of the contraband in this case was on 26.04.2004. The properties were produced before the court only on 28.04.2004. There is no explanation for the same. The counsel also submitted that the arrest memo is not produced and marked in this case and hence, there is no evidence to show that the accused was arrested from the spot on the alleged date. The counsel also submitted that Ext.P6 **CRL.A.No.2401 OF 2006** **4** forwarding note is silent as far as, the person through whom, the sample is forwarded for the chemical examination. 7. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove that the accused committed the offence and there is nothing to interfere with the conviction and sentence imposed by the lower court. 8. The point for consideration in this appeal is whether the accused committed the offence punishable under Section 55 (a) the Abkari Act. 9. Admittedly, the alleged seizure of the contraband in this case was on 26.04.2004. The properties were produced before the court only on 28.04.2004 as evident by Ext. P5 property list. I perused the property list. There is no reasonable explanation for the delay in producing the property. If there is unexplained delay in producing the property before the court in Abkari Cases, that is fatal to the prosecution. That itself is sufficient to acquit an accused. There is no explanation from the part of the **CRL.A.No.2401 OF 2006** **5** prosecution for the delay in producing the sample before the court. This point is also considered by this Court in _**Sukumaran v. State of Kerala (2019 (3) KLT 920), Ravi v. State-Sub Inspector of Police, Meppadi (2018 (5) KHC 352) and Vikraman v. State of Kerala (2018 (1) KLT 822).**_ Relevant portion of the judgment in _**Ravi's case**_ (supra) is extracted hereunder: “8. In order to support the argument, the learned counsel for the appellant cited the ruling in Ramankutty v. Excise Inspector, Chelannur Range, 2013(3) KHC 308 : 2013(3) KLJ 434 : ILR 2013 (3) Ker. 535 : 2013(3) KLT SN 83 wherein it is held that 'in the absence of satisfactory explanation by the prosecution showing the cause of delay, even delay of one day is fatal to the prosecution and therefore, the accused is entitled to the benefit of doubt. 9. In the instant case, there is a delay of four days in producing the contraband articles before the Court. According to the evidence of PW4, it was kept under his safe custody. But, he has to explain that these contraband articles were produced before the Court with tamper proof. Moreover, Ext.P6 is the copy of the forwarding note. It does not contain the seal, which was alleged to have affixed on the sample. So, without verifying the sample seal, the Court cannot act upon Ext.P6 copy of the forwarding note.” 10. Moreover, the arrest memo is not produced and marked in this case. The relevancy of the arrest memo is **CRL.A.No.2401 OF 2006** **6** considered by this court in several judgments. That is an important document to show that the accused is arrested and the property is seized from the place of occurrence. Admittedly, the arrest memo is not marked. This Court in _**Sathyan v. State of Kerala [2015 (1) KLT 586 and in Ramankutty v. Excise Inspector, Chalannur Range [2013 (3) KHC 308]**_ mentioned about the importance of arrest memo in Abkari cases. To prove the arrest, this court observed that, the arrest memo is necessary. The relevant paragraph in _**Ramankutty v. Excise Inspector, Chalannur Range [2013 (3) KHC 308]**_ is extracted hereunder. "7. It is pertinent to note that the 'arrest memo', a crucial document which is required to be prepared contemporaneously at the time of arrest to show the genuineness of arrest, is seen not produced before the Trial Court. Prosecution has no case that though the arrest memo had been prepared at the time of the arrest and seizure, it could not be produced before the Trial Court. So it can be safely concluded that it was not prepared at the time of alleged arrest. It is the violation of one of the mandatory requirements of arrest to be followed in all cases of arrest, which is made mandatory by the Supreme Court in D.K. Basu v. State of West Bengal. The specific case of the prosecution is that the Revision Petitioner, while coming through a public road carrying a plastic can containing 2 litres of arrack in his hand, was arrested from a road and seized the said contraband by the Preventive Officer and party. Therefore, I am of the opinion that the arrest with the **CRL.A.No.2401 OF 2006** **7** contraband in his hand is the basis of the prosecution case on which the entire case has been built up. If the arrest is not proved beyond reasonable doubt, the entire case set up by the prosecution will fall to ground. It is also pertinent to note that there is no evidence to show that one friend or relative or other person known to him was informed of the arrest of the Revision Petitioner, immediately after the arrest in compliance with another mandatory requirement of arrest in the Supreme Court decision in D.K.Basu's case. It is apposite to have a look at the said directions of the Supreme Court which read as follows: " That the Police Officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee." The prosecution has no case that they have complied the said directions. I am of the opinion that the noncompliance of the mandatory requirements to be complied at the time of arrest speaks volumes doubting the genuineness of the arrest and it is fatal to prosecution case, as the seizure of the contraband has no existence at all **CRL.A.No.2401 OF 2006** **8** without proving the factum of arrest, beyond reasonable doubt." 11. Similarly, Ext.P6 forwarding note is silent with regard to the name of the person through whom the sample is sent. But in Ext.P7 anlayst report it is stated that, the analyst received the sample on 02.06.2004 through one police constable No. 1161. That police officer is not examined. Ext.P6 forwarding note is dated 27.04.2004, but the sample is received by the analyst only on 02.06.2004. There is no explanation for the same. 12. Moreover, the forwarding note is silent with regard to the name of the person through whom the sample is forwarded to the analyst. In Ext.P6 forwarding note, the name of the person who took the sample to the Chemical Examiner is not mentioned. If that be so, the benefit of doubt will go to the accused. In this case, the thondy clerk or the person who took the sample to the Analyst are not examined. This Court in _**Kumaran v. State of Kerala [2016 (4) KLT 718]**_ held as follows: “There is yet another reason to grant benefit of doubt to the **CRL.A.No.2401 OF 2006** **9** revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext.P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamperproof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction **CRL.A.No.2401 OF 2006** **10** and sentence passed by the courts below cannot be sustained.” 13. In the light of the above facts discussed above, I think the accused in this case is entitled to the benefit of doubt. Therefore, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 23.09.2006 in S. C. No.294 of 2005 on file of the Additional Sessions Judge (Adhoc-I), Kasaragod is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant is cancelled. **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** JS/LU