Balan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 6TH DAY OF JANUARY 2016/16TH POUSHA, 1937 CRL.A.No. 2233 of 2007 (D) ------------------------------AGAINST THE JUDGMENT IN SC 983/2004 of ADDL. DISTRICT & SESSIONS COURT - FAST TRACK- (ADHOC-I), KOZHIKODE DATED 29-10-2007 -------- APPELLANT/ACCUSED: ------------------------- BALAN, S/O RAMOTTI, KORACHALIL HOUSE, MODAKKALLUR AMSOM, KOTHANKAL DESOM KOYILANDY TALUK. BY ADV. SRI.SANTHARAM.P RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal No.2233 of 2007 -----------------------------------------------Dated this the 6[th] day of January, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court (Ad hoc)-I, Kozhikode, for the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of 1 lakh and, in default of payment of fine, to₹ undergo rigorous imprisonment for six months. Challenging the conviction and sentence so passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW1, the Preventive Officer, Excise Enforcement and Anti Narcotic Special Squad, Kozhikode, and his party were on patrol at Kothankal in Modakkallur village at about 5.45 p.m. Crl. Appeal No.2233 of 2007 -2- on 13-03-2003. While so, the appellant was seen coming from the opposite side carrying M.O.1, a ten litre size black jerrycan, in his right hand. Seeing the excise party, the appellant attempted to flee away. But, he was stopped there by the excise party. On examining the contents of the jerrycan in the presence of the witnesses, about five litres of illicit arrack was found in it. Therefore, the appellant was arrested by PW1 preparing Ext.P1 Arrest Memo. The arrack contained in the jerrycan was also seized by PW1 under Ext.P2 Seizure Mahazar in the presence of witnesses. He had drawn 180 ml. of arrack as sample from the bulk contained in M.O.1 jerrycan. The sample bottle as well as M.O.1 jerrycan containing bulk of arrack were sealed in the presence of witnesses. The factum of arrest of the appellant was informed the wife of the appellant when she reached that spot knowing that he was arrested. Thereafter, the excise squad reached the office of Excise Enforcement and Anti Narcotic Special Squad, Kozhikode, with the appellant, contraband items and the records and entrusted them to the Crl. Appeal No.2233 of 2007 -3- Excise Circle Inspector there. On the next day, namely, 14-03-2003, the appellant, contraband items and the records were handed over to the Excise Range Office, Balussery. PW3, the Assistant Excise Inspector, Balussery, has registered Crime No.11 of 2003 of that Range Office in respect of the occurrence. Ext.P3 is the Crime and Occurrence Report thus prepared by PW3. He has produced the appellant, contraband including sample and the records before the Judicial First Class Magistrate's Court, Koyilandy, on 14-03-2003 itself. The investigation of the case was conducted by PW6, the Excise Inspector, Balussery. He has questioned the witnesses and recorded their statements. PW4, the Village Assistant, Atholi, has prepared Ext.P7 sketch of the place of occurrence. PW6 has completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Kozhikode, and, from there, it was made over to Crl. Appeal No.2233 of 2007 -4- the Assistant Sessions Court, Koyilandy. The Assistant Sessions Court, Koyilandy, has framed a charge against the appellant alleging the offence under Section 8(1) and (2) of the Abkari Act. The appellant pleaded not guilty of the charge. Thereafter, the case was withdrawn and made over to the Additional Sessions Court (Ad hoc)-I, Kozhikode. The prosecution examined PWs.1 to 6 and marked Exts.P1 to P7 and M.O.1 on their side. The appellant was examined under Section 313 of Cr.P.C. He has denied all the incriminating circumstances shown against him. He maintained that he was innocent of the allegations levelled against him. The defence has not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 8(1) and (2) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed by the court below against him. It is the case of the prosecution that the Crl. Appeal No.2233 of 2007 -5- appellant was arrested by PW1 preparing Ext.P1 Arrest Memo. It can be seen from Ext.P1 that no witness is named in this document as witnessed the arrest of the appellant. It is the specific case of the prosecution that while M.O.1 jerrycan was examined by PW1 and the excise party, two witnesses were present. Going by the statements made in Ext.P2 Seizure Mahazar prepared by PW1, the different steps after the detection of the alleged offence were taken in the presence of witnesses. According to the prosecution, two witnesses were also present. Two witnesses, apart from the excise officials, are named in Ext.P2 as the witnesses. In Ext.P1 there is a specific column, that is column No.10, for entering the names of persons in whose presence the accused was arrested. Therefore, it was incumbent on the part of PW1 to incorporate the names of those persons in Ext.P1 if witnessed the arrest of the appellant. No explanation has been offered for not naming the witnesses in Ext.P1 Arrest Memo. The absence of any justification for not naming the witnesses of arrest in Ext.P1 assumes Crl. Appeal No.2233 of 2007 -6- significance when considering the case of the prosecution that the steps after detecting the offence were taken in the presence of two named witnesses in Ext.P2. If that be so, the excise party had no difficulty for incorporating the names of those witnesses in Ext.P1. But they have not done so. It is the specific case of the defence that the alleged detection, arrest and seizure of the contraband at the place claimed by the prosecution are absolutely baseless and the appellant is totally innocent of the allegations raised against him. 6. The Honourable Supreme Court issued certain directions in regard to arrest of persons in **D.K.Basu v. State of W.B. (A.I.R. 1997 SC 610)** . Those directions read as follows: “(2) 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 be either 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. (3) A person who has been arrested or Crl. Appeal No.2233 of 2007 -7- 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.” Therefore, the presence and attestation of the Arrest Memo at least by one witness is mandatory as per this ruling of the Honourable Supreme Court. In the case on hand, not even a single witness has attested the Arrest Memo. An Arrest Memo fully complying with the requirements is a crucial document required to be prepared contemporaneously at the time of arrest in order to prove the genuineness of arrest. It is the specific case of the prosecution that the appellant was seen coming from the opposite side carrying a black jerrycan containing about five litres of arrack in his right hand and he was arrested then and there and the contraband was seized by PW1. Therefore, the arrest of the appellant with the contraband is the basis of the prosecution case alleged against the appellant. If the arrest is not proved Crl. Appeal No.2233 of 2007 -8- beyond reasonable doubt, as held by this Court in **Ramankutty v. Excise Inspector (2013 (3) KHC 308)** , the entire case set up by the prosecution will fall to ground. The prosecution case that the wife of the appellant came to the scene of occurrence after knowing about the arrest of the appellant and her name is incorporated in Ext.P1 Arrest Memo is no ground for deviating from the mandatory directions issued by the Honourable Supreme Court in relation to the arrest of the accused. The prosecution has no case that the wife of the accused was present at the time of arrest. Their case is that she came to the scene only after getting information about the arrest of her husband in this case. Therefore, in the absence of witnesses in Ext.P1, it can be safely found that the arrest had not been witnessed by any of the witnesses. There is clear violation of the mandatory directions issued by the Honourable Supreme Court in **D.K.Basu** 's case (supra). In that view of the matter, the case pleaded by the defence that the appellant was never arrested and no contraband was seized from him at Crl. Appeal No.2233 of 2007 -9- the time or place claimed by the prosecution cannot be ignored. The absence of attesting witnesses in Ext.P1 speaks volumes doubting the genuineness of the arrest and it is fatal to the prosecution case as the seizure of the contraband has no existence at all without proving the factum of arrest beyond reasonable doubt as held in **Ramankutty** 's case (supra). 7. It is the prosecution case that the offence was detected and the appellant was arrested with the contraband at 5.45 p.m. on 13-03-2003. Thereafter, the excise party reached the office of the Special Squad at Kozhikode with the appellant, properties and the records and entrusted them to the Excise Circle Inspector there. Both PWs.1 and 5 deposed this fact. PW1 further sated that the appellant and the properties were so handed over to the Excise Circle Inspector at 7.45 p.m. on that day. It is the case of the prosecution that the appellant, properties and the records so entrusted to the Excise Circle Inspector were produced at the Excise Range Office, Balussery, at 12.10 Crl. Appeal No.2233 of 2007 -10- p.m. on 14-03-2003 and, thereafter, PW3, the Assistant Excise Inspector, registered the case by drawing Ext.P3 Crime and Occurrence Report. PW3 claimed that the appellant and the properties were received by him at about 12.10 p.m. on 14-03-2003 at the Excise Range Office, Balussery. But, he admitted the fact that going by Ext.P3 Crime and Occurrence Report, it cannot be seen that who had entrusted the appellant and the properties and by whom they were received. PW6, the Investigating Officer, also admitted the fact that as per Ext.P3 it cannot be found as to who had entrusted the properties and to whom they were entrusted. 8. There is absolutely no evidence in regard to the custody of the properties after they were entrusted to the Excise Circle Inspector at about 7.45 p.m. on 13-03-2003 till they were handed over to the Excise Range Office, Balussery, at about 12.10 p.m. on 14-03-2003. PW6 admitted that he had not questioned the Excise Circle Inspector in the Special Squad. This Excise Circle Inspector Crl. Appeal No.2233 of 2007 -11- was not examined in this case. None of the official witnesses deposed in regard to the custody of the contraband during the period between the entrustment of them with the Circle Inspector and with the Excise Range Office, Balussery. This is a serious matter affecting the veracity of the prosecution case. In **Narayani v. Excise Inspector (2002 (3) KLT 725)** , a learned Single Judge of this Court observed as follows: “........In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out. ........” Therefore, the accused was found to be entitled to the benefit of doubt in that case. For the very same reason, the appellant in the case on hand is also entitled to such a benefit. 9. I have already adverted to the total denial of the Crl. Appeal No.2233 of 2007 -12- prosecution case by the appellant with regard to the detection, arrest and seizure of contraband at the time and place claimed by the prosecution. PW1, the Detecting Officer, claimed that he had spent about one hour at the place of occurrence. Therefore, in connection with the detection, arrest, seizure of contraband etc., according to PW1, about one hour was spent. But, PW5, who claimed to have accompanied the Special Squad, specifically stated that he had spent about 20 minutes at the place of occurrence. These contradictory statements of PWs.1 and 5 also assume significance in the light of specific and total denial of the prosecution case by the defence. Another matter also has to be considered along with this. The prosecution relied on Ext.P7 sketch of the place of occurrence prepared by PW4, the Village Assistant, in order to substantiate the place of occurrence. PW4 deposed that he had prepared Ext.P7 after inspecting the place of occurrence. He categorically stated that the place of occurrence had not been shown to him by anybody. If that Crl. Appeal No.2233 of 2007 -13- be so, the place of occurrence shown in Ext.P7 cannot be relied on as the real place of occurrence. Because, the statements made in Ext.P2 Seizure Mahazar with regard to the place of occurrence cannot exactly lead to the spot shown by PW4 in Ext.P7. CWs.3 and 4 were cited by the prosecution as occurrence witnesses. CW4 was examined as PW2. He did not support the prosecution version of occurrence. He was declared hostile. The other independent witness, namely, CW3 was not examined by the prosecution. The evidence of the official witnesses, namely, PWs.1 and 5, by and large, support the prosecution case of occurrence. When all the facts adverted to hereinbefore are considered, it is totally unsafe to rely on the evidence of PWs.1 and 5 for entering a conviction against the appellant for a serious offence under section 8(1) and (2) of the Abkari Act. The appellant, at least, is entitled to the benefit of doubt. 10. For the foregoing reasons, the conviction and sentence passed by the court below against the appellant are liable to be set aside. The appellant is entitled to an Crl. Appeal No.2233 of 2007 -14- order of acquittal of the offence under Section 8(1) and (2) of the Abkari Act alleged against him. 11. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offence under Section 8(1) and (2) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE