ITTU @ STANY v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 26TH DAY OF JUNE 2020 / 5TH ASHADHA, 1942** ## **CRL.A.No.2093 OF 2005** **AGAINST THE JUDGMENT IN SC NO.177/2001 DATED 09-09-2005 OF THE ADDITIONAL SESSIONS JUDGE (AD HOC-1), KASARAGOD** **AGAINST THE JUDGMENT IN CP NO.56/2001 DATED 25-05-2001 OF JUDICIAL FIRST CLASS MAGISTRATE, KASARAGOD** ## **APPELLANT/ACCUSED:** **ITTU @ STANY AGED 28 YEARS S/O. DANIYAL RODRIGUS, CHAKKATTAMOOLA HOUSE, ARANTHODU, MADHUR VILLAGE, KASARAGOD DISTRICT.** **BY ADV. SRI.T.K.VIPINDAS** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE EXCISE INSPECTOR, KASARAGOD.** **R1 BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL NO.2093 OF 2005 2** ## **JUDGMENT** **Dated this the 26[th] day of June, 2020** **...** The above appeal is filed by the accused challenging the judgment dated 9.9.2005 in Sessions Case No.177 of 2001 on the file of the Additional Sessions Judge (Adhoc-1), Kasaragod. The Excise Inspector, Kasaragod charge sheeted the accused alleging offence punishable under Section 55(a) of the Abkari Act. 2. The Prosecution case is that, the accused was found in possession of 10 litres of arrack in a plastic can on 14.03.2000 at 7 a.m. 3. On appearance of the accused before the trial court, the court framed charge under Section 55(a) of the Abkari Act. 4. To substantiate the case, PW1 to PW5 are examined on the side of the prosecution. Exhibits P1 to P5 are the documents marked on the side of the prosecution. Exhibit D1 is the document marked on the ## **CRL.APPEAL NO.2093 OF 2005 3** side of the defence. MO1 is the material object. 5. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 55(a) of the Abkari Act. The accused is sentenced to undergo Rigorous imprisonment for a period of three months and to pay a fine of Rs.1,00,000/-. In default of payment of fine, the accused is directed to undergo Rigorous imprisonment for a further period of one month. Aggrieved by the above conviction and sentence, this appeal is filed. 6. Heard the learned counsel for the appellant and also the learned Public Prosecutor. 7. The point for consideration in this appeal is whether the accused committed the offence under Section 55(a) of the Abkari Act. 8. Altogether, five witnesses were examined by the prosecution. PW1 is the Excise Inspector who detected the offence. PW2 and PW3 are the independent witnesses who turned hostile to the prosecution. PW5 is the Excise Guard, who accompanied PW1 at the time ## **CRL.APPEAL NO.2093 OF 2005 4** of alleged search and seizure. PW4 is the Excise Inspector, who conducted the investigation in this case. 9. PW1, the Excise Inspector, Kasaragod Range, deposed that, on 14.03.2000 at about 7 a.m. **,** when he and his party were on patrol duty, he saw the accused coming from the opposite side carrying a plastic can in his hand. He was intercepted, and on search, it was found that, the plastic vessel in his hand, contained 10 litres of arrack. After taking the sample, the contraband articles were seized. Thereafter, the case was investigated by PW4 and filed final report before the court. 10. The main point raised in this case is that, no arrest memo is produced and therefore the arrest is not proved. It is also contended that, as per Ext.P4 forwarding note, the sample was forwarded to the Analyst through one P. Manoharan, Excise Guard, on 14.03.2000. But the sample reached in the hands of the Analyst only on 21.03.2000. The Counsel submitted that, there is no explanation on the part of the ## **CRL.APPEAL NO.2093 OF 2005 5** prosecution for not examining P.Manoharan in this case. 11. The learned Public Prosecutor submitted that, in the light of the oral and documentary evidences, the offence under Section 55(a) is proved against the accused. There is nothing to interfere with the conviction and sentence imposed on the accused by the trial court. 12. Admittedly, the arrest memo is not produced in this case. 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_ ## **CRL.APPEAL NO.2093 OF 2005 6** _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 directions of the Supreme Court which read as follows: "That the Police Officer carrying out the arrest of the arrestee shall prepare a_ ## **CRL.APPEAL NO.2093 OF 2005 7** _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.2093 OF 2005 8** 13. Moreover, a perusal of Ext.P4 forwarding note will show that, the sample was forwarded to the Chemical Examiner to Government through one P.Manoharan, Excise Guard on 14.03.2000. As per Ext.P5, the sample was received by the Joint Chemical Examiner to Government on 21.03.2000. There is no explanation on the part of the prosecution for the delay in producing the sample from 14.3.2000 to 21.03.2000. Moreover, P.Manoharan, Excise Guard is not examined in this case. In Abkari cases, it is the fundamental duty of the prosecution to prove all the links starting from the seizure of the contraband article till it reaches in the hands of the Analyst. Without examining P.Manoharan, Excise Guard, the prosecution cannot prove the same. Therefore, nonexamination of the above named Excise Guard is fatal in this case. In **Madhavan v. State of Kerala** (2019 (4) KLT 18), this court observed like this: _“19. Mere seizure of a bottle allegedly containing liquor from the possession of the appellant is not sufficient to prove the offence alleged against him. When the_ ## **CRL.APPEAL NO.2093 OF 2005 9** _prosecution relies upon the report of chemical analysis in respect of the sample sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the sample till the same reached the hands of the chemical examiner. Mere production of a laboratory report that the sample tested was liquor cannot be conclusive proof by itself. The sample seized and that tested have to be corelated [See Vijay Pandey Crl.A.No.2785/2008 10 v. State of Uttar Pradesh: 2019 (10) SCALE 129 : 2019 (3) KLT OnLine 3028 (SC)]."_ Here in this case, as the prosecution miserably failed to prove all the links starting from the date of seizure of the contraband article till it reaches in the hands of the Analyst, in the light of the above authoritative judgment, I think, the benefit of doubt will go the appellant. 14. In the light of the above discussion,I think, the accused is entitled an order of acquittal. **CRL.APPEAL NO.2093 OF 2005 10** Hence, this Crl.Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 9.9.2005 in Sessions Case No.177 of 2001 on the file of the Additional Sessions Judge (Adhoc-1), Kasaragod, is set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant, is cancelled. ## **pkk** **Sd/P.V.KUNHIKRISHNAN JUDGE**