CRL.A. No. 1903 of 2005 against the judgment in S.C. No. 245 of 2000 (Addl. District & Sessions Judge (Adhoc)-II, Kollam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942** ## **CRL.A.No.1903 OF 2005** **AGAINST THE JUDGMENT IN S.C.NO.245 OF 2000 DATED 3-10-2005 ON THE FILE OF THE COURT OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC)-II, KOLLAM** ## **APPELLANTS/ACCUSED NOS.3 AND 4** **1 MADHUSOODHANAN PILLAI @ UNNI S/O. BALAKRISHNA PILLAI, REVATHY VEEDU,, KANNIMEL CHERRI, SAKTHIKULANGARA VILLAGE. 2 SIVAPRASAD, S/O. THAMARAKSHAN ARIAZHATHU VEEDU, KUREEPUZHA CHERRI,, SAKTHIKULANGARA VILLAGE.** ## **BY ADV. SRI.SHABU SREEDHARAN** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE,, SAKTHIKULANGARA POLICE STATION,, THROUGH THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA.** ## **OTHER PRESENT:** ## **R1 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL No.1903 of 2005 2** ## **JUDGMENT** **Dated this the 25th day of November 2020** … The appellants are accused Nos.3 and 4 in Sessions Case No.245 of 2000 on the file of the Court of the Additional District and Sessions Judge (Adhoc)-II, Kollam. 2. The above case is charge sheeted by the Assistant Sub Inspector of Police Sakthikulangara Police Station against the appellants and two others alleging offences punishable under Sections 8(1) and 55(a) of the Abkari Act. 3. The prosecution case is that, on 17.4.1999 at 11.45 p.m., the accused No.4 along with accused Nos.1 to 3 was driving an autorikshaw bearing No.KL2F 1087 through the road leading from Sakthikulangara to Ozhukkuthodu transporting liquor in a 50 litre ## **CRL.APPEAL No.1903 of 2005 3** cannas. The accused and autorikshaw were intercepted by the police party. The contraband were seized. Hence, it is alleged that, the accused committed the said offence. 4. To substantiate the case, the prosecution examined PW1 to PW6. Exhibits P1 to P4 are the documents marked on the side of the prosecution. MO1 is the material object. One witness was examined on the side of the defence as DW1. 5. After going through the evidence and documents, the trial court found that, the accused Nos.3 and 4 committed the offence under section 8(1) of the Abkari Act. The 1[st] and 2[nd] accused were acquitted by the trial court. Accused Nos.3 and 4 were sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.1 lakh each under section 8(1) of the Abkari Act. In default of **CRL.APPEAL No.1903 of 2005 4** payment of fine, they were directed to undergo rigorous imprisonment for another period of one year each. 6. Aggrieved by the above conviction and sentence, accused Nos.3 and 4 filed this criminal appeal. 7. Heard. 8. Admittedly, the forwarding note is not marked in this case. The importance of forwarding note in abkari cases is considered by this Court in several judgments. The prosecution is relying on Ext.P4 chemical analysis report. To prove that, the contraband seized from the possession of the accused reached in the hands of the Analyst, the forwarding note is an important document. Admittedly, the forwarding note is not marked in this case. For that single reason itself, the accused is entitled the benefit of doubt. **CRL.APPEAL No.1903 of 2005 5** This Court in several decisions considered the relevancy of the forwarding note. Some of the decisions are **Gireesh @ Manoj v. State of Kerala (2019(4) KLT 79), Vijayan @ Pattalam Vijayan and another v. State of Kerala (2018 (2) KHC 814)** and **Prakasan and another v. State of Kerala (2016 KHC 96)** . The relevant portion of the judgment in **Gireesh's** case (supra) extracted hereunder: _“14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by PW5 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See Prakasan v. State of Kerala (2016 KHC 96 : 2016 (1) KLD 311 : 2016 (1) KHC SN 40 : 2016 (1) KLT SN 96)_ **CRL.APPEAL No.1903 of 2005 6** _and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLT SN 16)).”_ In the light of the above authoritative judgments, it is clear that, the failure on the part of the prosecution to produce the forwarding note is fatal to the prosecution case. That itself can be a ground for acquitting the accused. 9. Moreover, the arrest memo is not produced in this case. According to the prosecution, accused Nos.3 and 4 who are the appellants in this case were arrested from the spot. The relevancy of the arrest memo was considered by this Court in detail in several judgments. In **Ramankutty v. Excise Inspector,** **Chalannur Range** [2013 (3) KHC 308], this Court observed the relevancy of arrest memo in Abakri cases. The relevant portion of the judgment is extracted hereunder: **CRL.APPEAL No.1903 of 2005 7** _"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 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_ **CRL.APPEAL No.1903 of 2005 8** _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 non-compliance 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 without proving the factum of arrest, beyond reasonable doubt."_ **CRL.APPEAL No.1903 of 2005 9** In the light of the above authoritative judgment, the non production of the arrest memo in this case is fatal to the prosecution case. On this ground also, the benefit of doubt will go in favour of the appellants. 10. The investigation in this case was conducted by an Assistant Sub Inspector of Police. The Assistant Sub Inspector of Police is not a competent officer to conduct investigation as per the Abkari Act. Whether the Assistant Sub Inspector of Police is authorised to conduct detection and investigation in an abkari case was considered by this court in several judgments. In Omana v. State of Kerala (2015(5) KHC 1000), it is held that, if detection, arrest and seizure in an Abkari case are conducted by the Assistant Sub Inspector of Police, the same will vitiate the trial. The same point was considered by **CRL.APPEAL No.1903 of 2005 10** this Court in Subash v. State of Kerala (2008(2) KHC 703), Biju and others v. State of Kerala (2011(1) KHC 518) and Chandrababu v. State of Kerala (2016(2) KLT 842). In the light of the above authoritative judgments, accused Nos.3 and 4 are entitled the benefit of doubt on this ground also. Therefore, this criminal appeal is allowed. The conviction and sentence imposed on the appellants who are accused Nos.3 and 4, as per the judgment dated 3.10.2005 in S.C.No.245 of 2000 on the file of the Court of the Additional District and Sessions Judge(Adhoc)II, Kollam are set aside. The appellants are set at liberty. Bail bonds, if any, executed by the appellants are cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **pkk** ## **JUDGE**