Haridas s/o Bhargavan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942** ## **CRL.A.No.1447 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 741/2004 OF ADDITIONAL DISTRICT & SESSIONS JUDGE (FAST TRACK COURT-I) THIRUVANANTHAPURAM** **AGAINST THE ORDER/JUDGMENT IN CP 106/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,ATTINGAL** ## **APPELLANT/:** **HARIDAS S/O BHARGAVAN, VADAKKUMKARA PUTHEN VEEDU,, PALOTHUKONAM, ANAKUDI MURI, PANGODE VILLAGE.** **BY ADV. SRI.V.S.THOSHIN** **RESPONDENT/:** **STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA.** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.K.B.UDAYAKUMAR,SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.1447/2006 ## **JUDGMENT** ## **Dated this the 2[nd] day of December, 2020** The appellant is the accused in S.C. No.741/2004 on the file of the Additional District and Sessions Judge, (Fast Track Court-1), Thiruvananthapuram. The above case was chargesheeted by the Sub Inspector of Police, Pangode Police Station alleging offence punishable under Section 55 (a) and (i) of the Kerala Abkari Act. 2. The prosecution case is that on 20.11.2002 at 9.30 p.m., the accused was found in possession of 750 ml of arrack in M.O.1 plastic bottle having a capacity of 1 ½ litres and also found in possession of M.O.2 glass. It is alleged that the accused was in possession of the contraband for the purpose of sale. Hence it is alleged that the accused committed the offence. 3. To substantiate the case, the prosecution examined PW1 to PW4. Exts.P1 to P3 are the exhibits marked on the side of 3 Crl.Appeal No.1447/2006 prosecution. M.O.1 and M.O.2 are the material objects marked by the prosecution. After going through the evidence and documents in this case, the trial court found that the accused committed the offence under Section 55 (a) r/w Section 8(2) of the Kerala Abkari Act. Accordingly, the appellant/accused is sentenced to undergo rigorous imprisonment for a period of 1 ½ years and to pay a fine of Rs. 1 lakh. In default of payment of fine, the accused is directed to undergo rigorous imprisonment for six months. Aggrieved by the conviction and sentence, this Crl.Appeal is filed. 4. Heard counsel for the appellant and Public Prosecutor. 5. The counsel for the appellant submitted that there is no independent corroboration to the official witness in this case. The counsel also submitted that the forwarding note is not marked in this case. The counsel submitted that the forwarding note is an important document to be marked in abkari cases. The counsel also submitted that there is no arrest memo. The counsel submitted that there is no property list marked in this case. Hence it is contended that the appellant is entitled the benefit of doubt. 6. The Public Prosecutor submitted that there is oral and 4 Crl.Appeal No.1447/2006 documentary evidence to prove the offence. The Public Prosecutor submitted that this Court may not acquit the accused on technical grounds. 7. Admittedly, the forwarding note is not marked in this case. Forwarding note is an important document to be marked by the prosecution in Abkari cases. It is the duty of the prosecution to prove all the links starting from seizure of contraband till its reaches in the hands of the analyst. 8. In abkari cases, forwarding note is important because the specimen seal used by the detecting officer will find a place in it. It is the fundamental duty of the prosecution to prove all the links starting from seizure of the contraband till it reaches in the hands of the analyst. Forwarding note is one of the links to prove the prosecution case in abkari cases. 9. 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: 5 Crl.Appeal No.1447/2006 _“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) and Gopalan v. State of Kerala (2016 KHC 541 : 2016 (2) KLD 469 : 2016 (3) KLTSN 16)”_ 10. In the light of the authoritative judgments, it is clear that the non production of the forwarding note is fatal to the prosecution. That itself can be a ground for acquitting the accused. 11. Moreover, the property list also not produced in this case. The property list is also an important document to be marked by the prosecution because unless the property list is there, the court will not be in a position to know when exactly the property reached to the court. 12. Similarly, the arrest memo is also not produced in this case. The importance of the arrest memo is considered by this Court in several cases. Unless the arrest memo is produced, the prosecution will not succeed, because there is no evidence to show that the accused was arrested from the spot. 13. Admittedly, the arrest memo is not produced in this case. 6 Crl.Appeal No.1447/2006 This Court in **Sathyan v. State of Kerala** [2015 (1) KLT 586 and in **Ramankutty v. ExciseInspector, 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 relevantparagraph 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 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_ 7 Crl.Appeal No.1447/2006 _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 arrestis 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-_ 8 Crl.Appeal No.1447/2006 _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."_ 14. In the light of the above discussion, I think the appellant/accused in this case is entitled to the benefit of doubt. Therefore, this Crl.Appeal is allowed. Conviction and sentence imposed on the appellant as per judgment dated 1.7.2006 in S.C. No.741/2004 on the file of the Additional District and Sessions Judge, (Fast Track Court-I), Thiruvananthapuram is set aside. The appellant is set at liberty and the bail bond if any, executed by him is cancelled. ## **P.V.KUNHIKRISHNAN JUDGE** Al/-+